Many people decide that they’re going to use social media, and quickly become frustrated at the lack of like an engagement they receive. I can’t stress enough that social media success takes time and sometimes can’t be measured. I can’t tell you that I get clients directly and indirectly based on my posts. Is it always possible to trace your content to new business? No. But I can tell you that having an active and consistent social media presence with helpful content certainly cannot hurt your business and brand.
You have all of the tools that you need in order to use social media to your advantage. Here are some tips on how to get more engagement from your posts.
The announcement of South Africa’s move to lockdown Level 2 with effect from 18 August 2020 is being celebrated by almost all economic sectors. Despite this, the Level 2 regulations emphasise that this is not the time for complacency. We must remain vigilant. In addition to the Level 2 regulations, industry members should look to the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces issued by the Minister of Employment and Labour on 4 June 2020.
The pandemic will continue to affect how we conduct business. The construction industry has enjoyed a degree of relaxation in its ability to carry out operations since Level 3 regulations were promulgated, with some restrictions continuing under Level 2. These include rotations and shift systems and implementation of health protocols in accordance with directions issued by government. In large-scale projects of over 500 individuals there are additional requirements to provide safe commute for employees, where possible, and daily health screening and reporting obligations.
The implementation of risk-mitigation strategies has proved to be easier said than done. For example, the social distancing directions, or the alternative of using physical barriers between workers, is not practical in the construction environment, and the use of some breathalyser testing apparatus, a standard screening mechanism in the sector, may not be possible.
The challenge is to comply with the regulations and directions and at the same time manage risks in relation to:
People
The industry is inherently social because it requires a strong physical presence to get the job done. As a result, the industry is vulnerable to a multitude of risks. The mitigation of these risks should include:
Supply Chain
While the economy is opening up, the process both locally and internationally remains volatile. The possibility of a resurgence of infections remains high. This may result in unavailability of suppliers and disruptions in procurement. The usual approach to supply chain management of ‘order when required’ may have to be reconsidered.
Costs
The implementation of health and safety protocols and mitigation strategies will cost contractors and operators, and ultimately employers, a substantial amount of money. This is, however, necessary to avoid the most significant commercial risk to construction works and operation of other workplaces, namely, total shut-down of a project or facility. The cost will have to be factored into the cost of construction and operation contracts which may affect the construction industry as a whole, and the future economic growth that is expected to come from investment in construction.
In an effort to reactivate the sector sustainably, several industry bodies including the Master Builders Association, South African Institute of Civil Engineers, and the South African Photovoltaic Industry Association in collaboration with others in the sector have developed safety protocols that offer practical solutions for the new normal in the industry and these protocols should be used as guidance on how to appropriately implement the lockdown regulations in workplaces.
]]>Reporting from CNBC, which is based on data from the U.S. Department of Labor, shows that unemployment claims for the week ending August 15, 2020 exceeded 1.1 million, which is almost 200,000 more than economists expected. [CNBC; Aug. 20, 2020]
Tennessee headquartered mall owner CBL Properties is expected to seek bankruptcy protection to restructure approximately $3 billion in debt, reports Yahoo Finance. Since the beginning of the COVID-19 pandemic, CBL and other commercial landlords have dealt with decreased revenue from rent as tenants have dealt with decreased foot traffic. [Yahoo Finance; Aug. 19, 2020]
Data from Fitch shows that in the first half of 2020 $ 40.1 billion worth of commercial mortgage backed securities were transferred to special servicing, with $35.5 billion worth being transferred during the second quarter of 2020. [Fitch; Aug. 17, 2020]
]]>Background
Community Medicaid (care at home) and Institutional (or Chronic) Medicaid (care in a nursing home) are two different things for New Yorkers. Home care services were always relatively free of financial limits and restrictions while nursing home care was not.
The law provides several opportunities for Medicaid planning for government-subsidized nursing home care even for people who have (or had – the distinction is important) significant assets. Medicaid is a program originally designed to assist low-income seniors with limited assets to afford health care and long-term care, but with proper planning a wider range of people can become eligible for its benefits.
In order to qualify for Medicaid nursing home assistance, a person’s possessions may not exceed certain maximum income and assets levels. Reducing one’s assets in the proper manner is the key to making a person eligible for Medicaid nursing home benefits. However, a person generally cannot transfer all his or her assets to a family member and then the next day apply for Medicaid nursing home assistance. Generally, if a senior applies for Medicaid nursing home benefits and is deemed to be otherwise eligible at that moment but is found to have gifted assets within five years from the application then that senior will be disqualified from receiving benefits for a certain number of months. This is referred to as the Medicaid penalty period.
The rules were very different for Community Medicaid (care at home). Until now.
In the past, New Yorkers were generally entitled to a variety of home-based assistance under the State’s Medicaid rules even without showing financial need.
Here is the news you should know now. Starting on October 1, 2020, most asset transfers you make for up to thirty (30) months before application for Medicaid home care benefits will be counted for eligibility for various Medicaid home services. This is a major reduction in benefits.
The new thirty (30) look-back period will be phased in between October 1, 2020, and April 2023, so the impact of the new law will be softened.
The law applies to home health care services, private duty nursing services, personal care services and assisted living program services. In order to obtain any home care services, an applicant and their spouse will need eventually to submit records of financial information for the thirty (30) months before the application. (Spousal Refusal rights remains intact, along with Parental Refusal, and there are transfers exempt from the new law as they may be for nursing home expenses but a discussion of these techniques is beyond the scope of this article.)
The “take away” from this? Consult an attorney with experience in estate planning and elder care planning for advice now.
]]>For the Court’s full announcement and Order, go here.
–Patrick Kane
]]>The guidance defines “opioids” to include prescription drugs such as codeine, morphine, oxycodone, hydrocodone, and meperidine, as well as illegal drugs like heroin. Opioids also include buprenorphine and methadone, which can be prescribed to treat opioid addiction in a Medication Assisted Treatment (“MAT”) program.
Job Disqualification for Opioid Use
The guidance clarifies that employers can continue to disqualify (i.e., refuse to hire, discipline, terminate) job applicants and employees based on illegal use of opioids. The employee’s use of an opioid, including opioids taken as directed in a MAT program, is considered legal if it is supported by a valid prescription. Employers are also permitted to disqualify applicants and employees for their opioid use if required by another federal law.
However, if (1) the opioid use is legal and (2) the applicant or employee is not disqualified from employment by federal law, then employers may not automatically disqualify the applicant or employee for opioid use “without considering if there is a way for [them] to do the job safely and effectively.” In determining job safety, the EEOC offers the following guidance:
Reasonable Accommodations for Opioid Addiction
The guidance also clarifies that the ADA may require employers to reasonably accommodate employees who are currently using opioids, are addicted to opioids, or were addicted to opioids in the past, but are not currently using drugs illegally. The guidance provides the following scenarios where the employer might be required to provide a reasonable accommodation for legal opioid use:
When evaluating possible accommodations for conditions related to opioid use, employers should use the same analysis under the ADA for other disabilities. A reasonable accommodation is some type of change in the way things are normally done at work, such as a different break or work schedule (e.g., scheduling work around treatment), a change in shift assignment, or a temporary transfer to another position. An employer might be required to hold an employee’s job open while the employer takes leave for treatment or recovery. Like with any accommodation under the ADA, however, employers never have to lower production or performance standards, eliminate essential functions (fundamental duties) of a job, or pay for work that is not performed. As to opioid-use specifically, employers do not have to excuse illegal drug use on the job as an accommodation.
]]>At the beginning of the Coronavirus pandemic, several southern states, including Florida and Texas, required that all non-essential travelers from select states in the northeast self-quarantine for 14 days upon arrival. With changing infection trends, the states requiring a 14-day quarantine for non-essential travelers upon arrival, or other restrictions, has also changed. Because a quarantine or other travel restrictions may make business travel to and/or from effected states impractical, understanding these regulations is critical to a more mobile workforce. The following table contains a 50-state summary of current non-essential travel restrictions, which are subject to change.
State | Travel Restrictions |
Alabama | Alabama does not have any travel restrictions in place for out-of-state travelers. |
Alaska | Beginning August 11, all out-of-state travelers entering Alaska are required to be tested within 72 hours before arrival; travelers can only enter the state if they test negative. The state is no longer offering tests upon arrival. |
Arizona | Arizona does not have any travel restrictions in place for out-of-state travelers. |
Arkansas | Arkansas does not have any travel restrictions in place for out-of-state travelers. |
California | California does not have any travel restrictions in place for out-of-state travelers. |
Colorado | Colorado does not have any travel restrictions in place for out-of-state travelers. |
Connecticut | On June 25, a mandatory 14-day quarantine was put in place for travelers coming to Connecticut from high-risk states, which you can see here. An executive order has strengthened the travel advisory, making the self-quarantine mandatory and punishable by a fine. The order also requires travelers to fill out a form upon arrival. |
Delaware | Delaware does not have any travel restrictions in place for out-of-state travelers. |
Florida | Florida does not have any travel restrictions in place for out-of-state travelers. |
Georgia | Georgia does not have any travel restrictions in place for out-of-state travelers. |
Hawaii | All travelers arriving at Hawaii’s airports, including residents, must complete the required paperwork. A 14-day self-quarantine applies to all travelers and residents arriving in Hawaii. Beginning October 1, travelers with a valid negative COVID-19 Nucleic Acid Amplification Test (NAAT) issued within 72 hours of travel will no longer need to quarantine upon arrival. If travelers do not present a negative test, they must self-quarantine for 14 days. There is also a 14-day quarantine requirement in place for inter-island travel. This applies to any person arriving to Kauai, Hawaii Island or Maui County (Maui, Molokai, Lanai), and traveling between these islands. It does not include inter-island travelers arriving on Oahu. This requirement is expected to remain in place until September 30. |
Idaho | Idaho does not have any travel restrictions in place for out-of-state travelers. |
Illinois | Illinois does not have any restrictions in place for out-of-state travelers. |
Indiana | Indiana does not have any restrictions in place for out-of-state travelers. |
Iowa | Iowa does not have any restrictions in place for out-of-state travelers. |
Kansas | Travelers arriving in Kansas are requested to quarantine for a period of 14 days starting from the day they arrive in Kansas. All persons arriving in Kansas are required to self-quarantine at home for 14 days if that person traveled to or attended a mass gathering/event outside of Kansas in which 500 or more people were in attendance, on or after August 11. |
Kentucky | As of July 20, Kentucky residents who have traveled to Alabama, Arizona, Florida, Georgia, Idaho, Mississippi, Nevada, South Carolina, or Texas are recommended to self-quarantine for 14 days upon arriving back in Kentucky. Out-of-state travelers from those states are recommended to self-quarantine for 14 days upon arrival in Kentucky. Residents are encouraged not to travel to these states. |
Louisiana | Louisiana has no travel restrictions in place for out-of-state travelers. |
Maine | Visitors entering Maine with proof of a recent negative test result do not have to quarantine upon arrival. Residents of Connecticut, New York and New Jersey are exempt from this requirement altogether. |
Maryland | Maryland strongly recommends that its citizens refrain from non-essential travel outside of Maryland. Travelers should either get tested for COVID-19 promptly upon arrival in Maryland or within 72 hours before travel. Any Marylander who travels to a state with a COVID-19 test positivity rate above 10% should get tested and self-quarantine at home until the test is received. A list of COVID-19 test positivity rates can be found here. The District of Columbia and Virginia are exempt from this recommendation. |
Massachusetts | Beginning August 1, all visitors and residents entering Massachusetts must fill out a travel form and self-quarantine for 14 days, unless arriving from a lower-risk state or can provide a negative COVID-19 test from within 72 hours prior to arrival. |
Michigan | Michigan does not have restrictions in place for out-of-state-travelers. |
Minnesota | Minnesota does not have restrictions in place for out-of-state travelers. |
Mississippi | Mississippi has no travel restrictions in place for out-of-state travelers. |
Missouri | Missouri has no restrictions in place for out-of-state travelers. |
Montana | Montana does not have any travel restrictions in place for out-of-state travelers. |
Nebraska | Only individuals returning to Nebraska from international travel will be required to self-quarantine for 14 days upon arrival. |
Nevada | Nevada has no travel restrictions in place for out-of-state travelers. |
New Hampshire | Travelers from non-New England states for an extended period of time are asked to self-quarantine for a two-week period. |
New Jersey | There is a mandatory 14-day quarantine in place for travelers coming to New Jersey from 33 high-risk states, all of which can be found here. |
New Mexico | All travelers entering New Mexico by air and vehicle are mandated to self-quarantine for 14 days upon arrival. Travel across the southern border to Mexico is restricted to essential travel only. As of August 3, the mandatory self-quarantine does not apply to residents who left the state for medical care, or to residents who left the state for less than 24 hours due to parenting responsibilities. |
New York | There is a mandatory 14-day quarantine in place for travelers coming to New York from many high-risk states, all of which can be found here. Additionally, out-of-state travelers must complete a state Department of Health travel form upon entering New York. Enforcement teams will be stationed at Port Authority and regional airports. |
North Carolina | North Carolina has no travel restrictions in place for out-of-state travelers. |
North Dakota | Travelers entering North Dakota from international locations or other states with widespread COVID-19 transmission must quarantine immediately for 14 days upon arrival. |
Ohio | Individuals diagnosed with COVID-19 or exhibiting symptoms are prohibited from entering Ohio, with a few exceptions. |
Oklahoma | Oklahoma does not have any travel restrictions in place for out-of-state travelers. |
Oregon | Oregon does not have any travel restrictions in place for out-of-state travelers. |
Pennsylvania | Travelers entering Pennsylvania from designated high-risk areas are recommended to self-quarantine for 14 days upon arrival. |
Rhode Island | All travelers entering Rhode Island from designated states with a positivity rate of greater than 5% must self-quarantine for 14 days, unless they can provide proof of a negative test result within 72 hours prior to arrival or during their quarantine period. |
South Carolina | South Carolina does not have any travel restrictions in place for out-of-state travelers. |
South Dakota | South Dakota does not have restrictions in place for out-of-state travelers. |
Tennessee | Tennessee has no travel restrictions in place for out-of-state travelers. |
Texas | Texas does not have any travel restrictions in place for out-of-state travelers. |
Utah | Utah does not have any travel restrictions in place for out-of-state travelers. |
Vermont | All travelers entering Vermont from another state must self-quarantine for 14 days upon arrival, except for persons coming from counties with less than 400 active cases of COVID-19 per one million residents. A list of these counties is here. |
Virginia | Virginia does not have any travel restrictions in place for out-of-state travelers. |
Washington | Washington does not have any travel restrictions in place for out-of-state travelers. |
West Virginia | West Virginia does not have any travel restrictions in place for out-of-state travelers. |
Wisconsin | Statewide travel restrictions have been lifted in Wisconsin, though some local governments have issued their own orders. |
Wyoming | Wyoming does not have any travel restrictions in place for out-of-state travelers. |
In addition, the CDC offers guidelines for safer business travel. Employers should advise employees to check themselves for symptoms of COVID-19 before starting travel and to notify their supervisor and stay home if they are sick. Employers should ensure employees who become sick while traveling or on temporary assignment notify their supervisor and promptly call a healthcare provider for advice, if needed. Finally, Employees should inform employees of any applicable state or local quarantine requirements or other travel restrictions, and instruct employees to adhere to those restrictions. This can be accomplished through periodic updates to return to work policies, which include relevant travel restrictions and guidance for business travel.
As you are aware, things are changing quickly and there is a lack of clear-cut authority or bright line rules on implementation. This article is not intended to be an unequivocal, one-size fits all guidance, but instead represents our interpretation of where things currently and generally stand. This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.
Sheppard Mullin is committed to providing employers with updated information regarding COVID-19 and its impact on the workplace. Stay informed on legal implications with Sheppard Mullin’s Coronavirus Insights Portal which now aggregates the firm’s various COVID-19 blog posts.
]]>The Settlement
On August 18, 2020, the Attorney General announced a settlement of the Marlette and Avant actions. The settlement allows the lending platforms to work with sponsor banks without being subject to the state’s challenge of federal preemption or claims that the platforms are the true lenders on the loans. The settlement also establishes a legal protection for future loans as long as the programs comply with the terms outlined in the settlement. The terms are limited to closed-end loans made to consumers through online platforms. In addition to the two companies involved in the action (i.e., Marlette and Avant), the settlement provides compliance guidelines for all similar programs of banks and other lending platforms providing loans to consumers in Colorado.
The settlement focuses on loans to Colorado residents with an interest rate of less than 36% offered by a nonbank online platform with interest rates that exceed the maximum 21% permitted under Colorado law. The settlement provides that no loans may exceed 36%. To the extent that a program offers “supervised loans” under Colorado law and a platform takes an assignment of such loans from a bank and directly collects payment on those loans, the online lending platform must obtain a license to service the loan from the Colorado UCCC Administrator.
Under the settlement, the programs must follow certain requirements to receive a safe harbor from further action by the state. Specifically:
The settlement also offers four compliance options for how many loans the bank can sell to a platform which reflect a degree of risk the bank[s] needs to maintain. These options generally limit the percentage of such loans that a platform may purchase from the bank and make a distinction between committed and uncommitted facilities to purchase. No limitations are provided for loans that are to be securitized. The final option gives the platforms the right to negotiate an alternative purchase structure with the approval of the Colorado UCCC Administrator.
Takeaway
After a long period of litigation with heightened interest, the settlement represents a significant development in the bank-sponsored online lending industry. This landmark settlement may serve as a blueprint for bank sponsorship programs in other jurisdictions. However, while helpful as an outline of terms that bank sponsored lending programs should consider, the 36% interest rate cap is an unrealistic limitation that few online lenders will be willing or able to comply with as a practical matter.
]]>This recall was triggered by the Canadian Food Inspection Agency’s (CFIA) test results. The CFIA is currently conducting a food safety investigation, which may lead to more recalls
The product was distributed in Ontario, Quebec and Saskatchewan. The CFIA is verifying that the recalled product is removed from the marketplace.
Consumers are being told not to consume the recalled product.
The recalled product:
Brand | Product | Size | UPC | Codes |
Brandt | Mini spicy cheese sausage | 0.375 kg | 773321 206306 |
Best Before 20AU20 |
So far, there have been no reported illnesses associated with the consumption of the recalled product
Questions can be directed to the CFIA at 800-442-2342 (Canada and U.S.), or 613-773-2342 (local or international).
About Listeria infections
Food contaminated with Listeria monocytogenes may not look or smell spoiled but can still cause serious and sometimes life-threatening infections. Anyone who has eaten any of the recalled products and developed symptoms of Listeria infection should seek medical treatment and tell their doctors about the possible Listeria exposure.
Also, anyone who has eaten any of the recalled product should monitor themselves for symptoms during the coming weeks because it can take up to 70 days after exposure to Listeria for symptoms of listeriosis to develop.
Symptoms of Listeria infection can include vomiting, nausea, persistent fever, muscle aches, severe headache and neck stiffness. Specific laboratory tests are required to diagnose Listeria infections, which can mimic other illnesses.
Pregnant women, the elderly, young children, and people such as cancer patients who have weakened immune systems are particularly at risk of serious illnesses, life-threatening infections and other complications. Although infected pregnant women may experience only mild, flu-like symptoms, their infections can lead to premature delivery, infection of the newborn or even stillbirth.
(To sign up for a free subscription to Food Safety Website, click here)
]]>Recent developments post-Schrems II
Following Schrems II, most companies small and large – especially those that had self-certified Privacy Shield – took a “wait-and-see” approach given the massive confusion that ensued. However, not much more guiding clarity has emerged since the ruling – other than some official statements/comments, such as the FAQs issued by the EDPB. All in, no groundbreaking developments, and certainly no uniform guidance on what should come next or how impacted companies might proceed. This may soon change. As of last week, Max Schrems and his privacy watchdog organization, NYOB, shook things up and filed over 100 complaints in 30 EEA countries. The complaints were filed against European companies that continued – post Schrems II – to transfer personal data about their online visitors to Google and Facebook in the U.S. More detailed information about those complaints (including a list of those companies and the individual complaints) can be found here.
In a nutshell, the complaints state that the transfers of personal data by these various companies to Facebook and/or Google are unlawful because they are either (a) still based on an invalidated adequacy decision (i.e., Privacy Shield) or (b) reliant on the Standard Contractual Clauses (SCCs), the use of which is prohibited under GDPR if the third country to which personal data is transferred does not allow for the same standard of adequate protection as under EU law. As summarized by NYOB’s website, this is because, with respect to U.S. companies, the CJEU found that further transfers to recipients that fall under U.S. surveillance laws namely the Foreign Intelligence Surveillance Act (“FISA”) violate data subjects’ data protection rights (among others). Because Google and Facebook qualify as electronic communication service providers within the meaning of FISA (50 U.S. Code §1881(b)(4)) and as such are subject to U.S. intelligence surveillance under FISA, it follows that the transfers of personal data outside of the EU to those recipients are unlawful –regardless of the relied-upon mechanism, per NYOB. What’s more, NYOB’s complaints would presumably require member state supervisory authorities to intervene and stop the transfers if indeed unlawful.
What steps should organizations take with respect to transfers pf personal data out of the EEA?
Now that it’s very clearly time for companies that have put off re-assessing the validity and bases of cross-border transfers to get busy, what does this mean concretely? First off, this means conducting transfer assessments. Then, once transfers and their bases have been validated, making necessary adjustments to cross-border transfer agreements and privacy notice(s).
At a high level, these transfer assessments require organizations transferring personal data within the scope of the GDPR to:
Once these assessments are conducted and properly recorded (in anticipation of a potential future audit), organizations will want to adjust their data processing agreements in order to ensure, where necessary, that any recipients in third countries that do not cut it either stop transferring the data to those countries or, if this can feasibly be accomplished, provide additional safeguards (e.g., encryption, notice mechanisms etc.). Importantly, organizations that have relied on Privacy Shield must also adjust their privacy notice(s).
Note that all organizations in the supply chain (controller, processor, sub-processor) are impacted here. If your organization is a processor of EU personal data in a third country that is not deemed adequate (again, including the U.S.), your organization must be capable of (a) addressing any controller/exporters’ concerns and (b) ensuring that its own onward transfers to sub-processors provide adequate safeguards, even though the primary responsibility falls upon the controller and/or exporter of personal data to perform assessments before allowing any personal data to be transferred out of the EEA. Processors should address this issue now so that they are prepared when an EU controller reconsiders using service providers in non-adequate countries as a result of the Schrems II decision.
In other words, there is a lot to be done.
]]>
The United States Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) have announced an extension of flexibility in certain I-9 verification procedures until September 19, 2020, due to COVID-19. This is applicable only for employers working remotely. This temporary extension had been set to expire on August 18, but has been extended due to the ongoing precautionary measures. Temporary measures for flexibility in E-verification were originally announced by ICE in March, and have been extended in 30-day increments.
The guidance, which pertains to Section 2 of Form I-9 employment eligibility verification, allows employers that are working 100% remotely to verify documents virtually, e.g., using fax or email. See blog, “Form I-9 Announcements: COVID-19 Temporary Policy for Identification Documents,” for more information.
ICE has also provided verification guidelines to employers in the event they have resumed to normal operations. Within three business days of the resumption of normal operations, employees whose documents were previously virtually verified must present themselves for in-person verification of identification and eligibility documents.
Under the previous guidelines provided by ICE, employers who received a Notice of Inspection in March, but who had not responded, were granted an additional 60-day extension. After the July 19, extension, employers have not been granted any additional extensions.
To learn more about this blog post or if you have any other immigration concerns, please feel free to contact me at rglahoud@norris-law.com or (484) 544-0022.
The post Flexible I-9 Measures Extended Until September 19 appeared first on Immigration Lawyers – Pennsylvania, New Jersey, New York.
]]>FINRA alleged, among other things, that a broker-dealer paid transaction-based compensation to “unregistered finders,” and non-registered entities owned by its registered persons. Ultimately, the NAC agreed that, over a 3 year period, the broker-dealer paid and/or shared certain transaction-based compensation with unregistered finders and entities affiliated with registered persons, rather than paying the registered persons directly. The NAC noted that the broker-dealer had previously been warned after an examination by the United States Securities and Exchange Commission’s (“SEC”) Staff, but it seemed to ignore this warning, and then went onto wrongfully pay over $2 million to these unregistered persons and entities.
The writing has been on the wall for some time. FINRA Rules prohibit FINRA members from paying such transaction-based compensation to non-members, and this position has been consistent. See NASD Notice to Members 05-18. FINRA has been clear that broker-dealers violate industry rules if they pay transaction-based compensation in connection with nearly all securities transactions to an unregistered person or entity. Additionally, the NAC made it clear that broker-dealers could not pay transaction-based compensation to entities affiliated with its registered persons, rather than paying the registered persons directly, relying upon the SEC’s previously published guidance.
In sum, broker-dealers should consult with secured securities counsel before entering into business relationships with “finders” or third parties that raise business opportunities. Member firms may not pay success compensation to these parties. Finally, there are no exemptions– pay the registered representatives, not their companies.
]]>The OCR has now updated the guidance (“Guidance”) to clarify that health plans may also use or disclose PHI for purposes of contacting individuals who have recovered from COVID-19 about donating plasma containing antibodies . The Guidance also emphasizes neither health care providers nor health plans can receive any payment from or on behalf of a blood or plasma donation center in exchange for making these communications without first getting each individual’s written authorization. Accordingly, both types of covered entities must carefully navigate when such outreach is considered “marketing” and requires prior authorization.
The HIPAA regulations define “marketing” as making “a communication about a product or service that encourages recipients of the communication to purchase or use the product or service,” unless an exception applies. Exceptions include situations involving communications for treatment and specified purposes involving the covered entity’s “health care operations” (as that term is defined in the regulations), as long as the covered entity does not receive “financial remuneration” in exchange for making the communication. The regulations define “financial remuneration” as “any direct or indirect payment from or on behalf of a third party whose product or service is being described,” but does not include “any payment for treatment of an individual.” 45 C.F.R. 164.501.
Interestingly, the Guidance does not precisely track the marketing definition and its exceptions, but interprets the “health care operations” exception for “case management or care coordination ... and related functions” as permitting the use of PHI for this type of outreach, as long as no financial remuneration is involved.
This means that there are certain situations in which a health plan or health care provider that is a covered entity may use and/or disclose PHI of recovered COVID-19 patients to encourage them to donate plasma, and others in which it may not (without first getting the patients’ written HIPAA authorizations):
Allowed: a covered entity may use member or patient information to contact the covered entity’s own members or patients to encourage them to donate plasma, if: (i) it is to facilitatd the supply of donated plasma would be expected to improve case management for infected individuals; and (ii) the covered entity does not receive financial remuneration from or on behalf of any blood or plasma donation center
Allowed: a covered entity may disclose member or patient information to a blood or plasma donation center that is acting as its business associate in order to improve the covered entity’s ability to conduct case management [while not expressly mentioned in the Guidance, if the center pays the covered entity, the existence of a business associate agreement may not protect the center from allegations that it is really an improper marketing arrangement]
X Not Allowed: a covered entity MAY NOT disclose member or patient information to a blood or plasma donation center so that the donation center can reach out to recovered individuals for its own purposes, even if the plan or provider does not receive financial remuneration in exchange for the PHI
X Not Allowed: a covered entity MAY NOT use member or patient information to contact those recovered from COVID-19 to encourage them to donate plasma, if the covered entity received financial remuneration from or on behalf of the blood or plasma to make the communication
In all cases, a covered entity that intends to rely upon the Guidance should carefully document all aspects of the planning and execution of the uses and disclosures of member or patient PHI, including the determination as to whether a HIPAA authorization is required, prior to the use or disclosure of PHI related to potential plasma donation.
]]>
On August 21, 2020, U.S. Federal Court Judge Paul Maloney of the Western District Court for Michigan issued an order denying a motion for a preliminary injunction over the State of Michigan’s testing requirements for agricultural and food processing workers.
This was a preliminary order for injunctive relief. So the lawsuit (Castillo v Whitmer, Case No. 1:20-cv-751) will theoretically continue. But as explained below, the Judge made several significant rulings that will make it difficult for the plaintiffs to ultimately be successful. It it is also another major “judicial win” for Governor Whitmer and her administration against those second-guessing Michigan’s response to COVID-19.
The Michigan Department of Health and Human Services (MDHHS) issued an Emergency Order that applied to agricultural employers and owners and operators of migrant housing camps. The Emergency Order mandates COVID-19 testing of these employees. If workers test positive for the coronavirus, or if workers refuse to be tested, they cannot work.
In the press release from the MDHHS, it welcomed the ruling:
The Michigan Department of Health and Human Services required testing for COVID-19 among certain workers as part of a carefully considered plan to protect a segment of Michigan’s workforce that is at an exceptionally high risk of COVID-19. The department welcomes today’s ruling by a federal court rejecting an attempt to undermine this critical program to save lives.
The Plaintiffs argued that the Emergency Order mandates COVID-19 testing of essentially “Latino agricultural workers” because the State requires testing only at places where the workers and residents are overwhelmingly Latino. The plaintiffs urged the Court to conclude the Emergency Order used “race,” which required a high and exacting standard (”strict scrutiny”) to justify it. The plaintiffs also argued that it did not, and thus discriminated on the basis of race.
The Court easily rejected this argument because the Order and testing requirements apply regardless of one’s race. Thus, the Court will apply the much lower standard called “rational basis” to analyze the contested government action going forward. Under that standard, the Emergency Order must only serve a legitimate public interest. With over 177,000 Americans dead from the virus and counting, it’s hard to see how the plaintiffs will show that slowing the spread of COVID-19 does not meet that requirement.
Use this link to contact Michigan attorney Jason Shinn if you have questions about this article or complying with Michigan or federal employment laws. Since 2001, Mr. Shinn has represented companies and individuals in employment discrimination claims under federal and Michigan employment laws.
]]>Click here to view our copyright petition on Change.org.
So many people are being sued – and threatened to be sued – by “copyright trolls” which are holders of intellectual property rights (such as video, film, photos, software, boxing broadcasting rights and other creative content) who seek top profit in the Courts by pursuing copyright infringement cases.
Our country is a country of immigrants and very few people understand the intricacies of copyright law. Nevertheless, “everyone is presumed to know the law” as the old saying goes.
In my IP law practice, I have seen many minorities and their companies, and others, bullied for various infringement claims and forced to pay large settlements for using a photo on their website, or downloading or sharing files through BitTorrent, or broadcasting a boxing match without commercial licensing rights at their {half-filled} restaurants, bars and taverns.
Most people are GOOD PEOPLE and don’t realize they are doing things wrong, and most have never received a CEASE and DESIST letter (which would naturally notify people they are violating the law and they should stop). Most people would in fact stop. Of course, this would dry up the “infringement market” for many companies who are profiting in this space. While I understand the need to protect intellectual property, I see many small businesses getting smashed by large five figure settlements.
To me, I think a Cease and Desist letter should be required as the first contact with a individual or company violating copyright laws. The recipient of the letter, if true, should pay a $250 penalty to cover the costs of the cease and desist letter or the rights holder could reserve their rights to go to Court.
This would both cut down on the large number of federal court lawsuits being filed each year (clogging the Courts with these cases), and for our new friends to this great country, (and perhaps not familiar with all the laws), this would allow them to avoid these types of “financial disasters” that can put them on the brink of fail, unwittingly in many cases.
Who will join me?
]]>A typical example of such a lawsuit was recently filed in Florida federal court. There, a 60-year-old employee alleged she was terminated because of her inability (or perhaps her personal fear) to return to the office because of pre-existing medical conditions that make her more susceptible to COVID-19 complications. She alleged that as her employer began reopening the office, she felt pressured to return to the workplace, despite the employer’s awareness of her medical conditions and a doctor’s note explaining the same. The employee claimed she succumbed to her management’s pressure to return and, upon doing so, found the employer’s safety measures appalling.
Specifically, she claimed her colleagues were not wearing masks and did not properly distance, and contended that the facility lacked basic sanitary products such as paper towels. She further claimed that after working in the office for only a couple of weeks, and with a coinciding spike in Florida COVID-19 cases, her employer abruptly terminated her because “things were not working out.” According to the employee, this justification for her termination was entirely pre-textual. Instead, she believes her employer terminated her because of anticipated accommodations the employer would have to make for her, such as remote work and sick leave. The employee alleges that her employer’s conduct violated the retaliation and interference provisions of the Family Medical and Leave Act (FMLA).
Though we are only seeing one side of this story in the employee’s complaint, these facts present a type of scenario that will likely be common for employers in the coming months. Among the sources of anticipated COVID-19-related complaints are organizations attempting to reopen offices, employees’ individual medical conditions impacting their ability to be physically present in the office, employers’ attempts (or failures) to implement workplace safety measures, and a cycle of spiking and waning COVID-19 cases throughout the country.
So what are employers to do in the face of all these factors and uncertainty?
We have discussed in previous blog entries that employers should first look to governmental agency guidance from organizations such as the Centers for Disease Control (CDC) and the Occupational Safety and Health Administration (OSHA) in making workplace decisions in the context of COVID-19. In the absence of laws shielding employers from COVID-19-related claims, employers can point to their compliance with this guidance to show their actions were reasonable. However, there actually is hope that federal and state governments will provide statutory protections for employers against some COVID-19-based claims. We previously highlighted several bills that are in the works providing such protections, though most are still working their way through their respective legislative bodies.
In the meantime, employers should be mindful that there is not a “one-size-fits-all” answer for these issues. Before taking any adverse employment actions, it is best to consult with counsel to identify any potential risks.
Companies in all sectors of the economy continue to be impacted by COVID-19. Foley is here to help our clients effectively address the short- and long-term impacts on their business interests, operations, and objectives. Foley provides insights and strategies across multiple industries and disciplines to deliver timely perspectives on the wide range of legal and business challenges that companies face conducting business while dealing with the impact of the coronavirus. Click here to stay up to date and ahead of the curve with our key publications addressing today’s challenges and tomorrow’s opportunities. To receive this content directly in your inbox, click here and submit the form.
]]>
The following outlines some of the best practices in reviewing equity incentive plans maintained by privately held companies. Publicly traded companies should engage in the same exercise, but are advised to consider slightly different issues in light of the impact of Institutional Shareholder Services (ISS) and/or Glass Lewis, securities regulations, and listing requirements.
Review delegation provisions in the plan document to confirm that the document is consistent with your company’s practice. Has the Board of Directors delegated authority to a committee or individual? If so, was that delegation lawful under corporate law?
]]>Depending on the severity of the disorderly conduct ticket, several different penalties could arise, such as:
As with any conviction, a finding of guilt can cause various collateral consequences. If you have been charged with a disorderly conduct ticket and are seeking employment, you might not be considered because the employer may believe you will exhibit chaotic and/or violent behavior while at work. Additionally, if you are looking to rent an apartment or a house, the landlord might not accept your application in fear that you will disturb those living in the complex or surrounding community. There are several long-lasting negative effects of a disorderly conduct charge, so it is important to explore all potential defenses. An experienced criminal lawyer can help reduce or dismiss your charges altogether.
Criminal charges can carry long-lasting consequences, even for disorderly conduct. To avoid significant disruption within your life, contact a qualified Milwaukee, WI criminal defense attorney from GRGB Law immediately. Our legal team will protect your rights while providing skilled representation on your behalf. Call our office today at 414-271-1440 to schedule your confidential consultation.
Source:
https://docs.legis.wisconsin.gov/statutes/statutes/947/01
]]>Although the Board’s decision may usher in more frequent remote hearings in the future, it’s not all bad. The same day as the Board’s decision in William Beaumont Hospital, the NLRB’s Division of Advice published 5 new advisory memos addressing COVID-19 related questions posed by different Regional Offices. In each case, the Division applied established law and recommended dismissal. Although, each advisory memo was written in response to an individual unfair labor practice charge and the Division’s conclusions are binding only as to the parties involved in that particular case, they provide some insight as to how similar cases might be handled and make it clear that COVID-19 pandemic or not – the same rules apply.
Below is a summary of those advisory memos each of which recommended dismissal to the Regional Office:
Mid-Term Bargaining
Protected Concerted Activity
Duty to Provide Information
For more information on the Division’s advisory memos see here.
]]>Is a SICAV a PFIC for IRS Tax and Reporting: Depending on which country you maintain your foreign or offshore assets, one type of foreign investment you may have is referred to as a SICAV. A SICAV is a type of investment which is often seen in European countries. Technically, a SICAV is a société d’investissement à capital variable, but to you, it is a U.S. tax headache. The SICAV has components that mimic a mutual fund or ETF in the U.S.
In other words, there is a fund that is held in a company form that issue shares for investors to invest in. Then, the investment manager of the fund invests the capital into various different securities. Depending on the securities the fund invests in, this type of investment may be risk heavy or risk averse.
As a result, this may lead to significant tax and reporting consequences on a tax return – and may involve PFIC and Form 8621 – but not always.
The concept of a SICAV is the concept of aggregate investing by a fund into several underlying securities.
In other words, instead of purchasing one stock and putting all your eggs in one basket, the funds invests in various securities.
This is similar to a mutual fund in the United States. As with mutual funds, the SICAV comes in all different shapes and sizes.
In addition, depending on the specific type of SICAV and the country or origin, it will impact how it is regulated, and how the ownership is held amongst different investors.
Different countries have their own versions of SICAV.
It depends on how the SICAV is structured.
One of the key components of the SICAV, which brings it into PFIC territory is that it is a fund owned by a company.
For a brief recap on PFIC, a PFIC may include foreign mutual funds.
A Foreign Mutual Fund is a contained investment vehicle held in a entity such as a corporation designated for the specific fund.
The crux of it is that the reason why a SICAV maybe considered a PFIC is the same reason why a foreign mutual fund is considered a PFIC.
That is because the fund is housed in a company which is primarily comprised of passive assets and or assets generating primarily passive income.
Generally, it is going to be reported on the FBAR if an account is associated with it — as well as a Form 8938 or 8621.
Since technically when a person invests in the SICAV they will receive an account number or similar identification number, it is included on the FBAR even though ownership foreign corporations are generally not included on the FBAR (while the accounts held by the corporation would be).
If it is considered a passive foreign investment company, then it would be included on Form 8621, and if there were excess distributions, it will also include a very complicated excess distribution calculation.
If the SICAV is considered a passive foreign investment company (“PFIC”) then each individual fund or SICAV must be dealt with separately in order to determine each SICAV’s share basis, shares owned, distributions, etc.
The SICAV would be taxed similar to a foreign mutual fund based on how long each fund is been held, reinvested dividend values, etc.
If you’re out of compliance for prior years and need assistance with offshore disclosure, we can help you safely get into offshore compliance.
Golding & Golding specializes exclusively in international tax, and specifically IRS offshore disclosure.
We are the “go-to” firm for other Attorneys, CPAs, Enrolled Agents, Accountants, and Financial Professionals across the globe. Our attorneys have worked with thousands of clients on offshore disclosure matters, including FATCA & FBAR.
Each case is led by a Board-Certified Tax Law Specialist with 20-years experience, and the entire matter (tax and legal) is handled by our team, in-house.
*Please beware of copycat tax and law firms misleading the public about their credentials and experience.
Sean M. Golding is one of less than 350 Attorneys (out of more than 200,000 practicing California Attorneys) to earn the Certified Tax Law Specialist credential. The credential is awarded to less than 1% of Attorneys.
Generally, experienced attorneys in this field will have the following credentials/experience:
No matter where in the world you reside, our international tax team can get you IRS offshore compliant.
Golding & Golding specializes in FBAR and FATCA. Contact our firm today for assistance with getting compliant.
The post Is a SICAV a PFIC for IRS Tax and Reporting? appeared first on International Tax Attorney | IRS Offshore Voluntary Disclosure.
]]>In its LendingClub complaint, the FTC had sought substantial monetary relief from LendingClub pursuant to its authority under Section 13(b), in the form of “rescission or reformation of contracts, restitution, the refund of monies paid, and the disgorgement of ill-gotten monies.” The trial in LendingClub had been scheduled for October. In finding a stay of that trial warranted, the LendingClub court emphasized that the FTC’s authority to seek monetary relief under Section 13(b) (or lack thereof) is “an issue of enormous consequence to this case.” The court explained, “[g]oing forward with trial would needlessly burden LendingClub to put on a trial defense only to possibly have the entire enterprise mooted by the FTC’s inability to seek any monetary relief under Section 13(b).”
The FTC had argued that the hardship of presenting a meritorious defense while the Supreme Court’s 13(b) decision was pending did not merit a stay. The LendingClub court soundly rejected the FTC’s argument, finding that the issue was not simply about hardship, but about “the viability of the remedy motivating the case.” Given that the remedy itself has the potential to be extinguished in the coming months, the court concluded that holding a trial before the Supreme Court’s decision issues “is fundamentally inequitable.” The LendingClub court noted a Supreme Court ruling limiting the FTC’s powers under Section 13(b) would “greatly simplif[y]” the case, “as no monetary relief will be at issue.” The court predicted that “the elimination of monetary relief will likely facilitate a negotiated resolution.”
]]>
Celltrion also announced last week that Celltrion Healthcare Co. (Celltrion’s marketing and distribution arm) has signed an agreement with Intract Pharma to develop the first tablet product of CT-P13, an infliximab biosimilar used to treat a number of autoimmune diseases. It will be the first tablet-type treatment on the market with infliximab as the main ingredient. This includes Crohn’s disease, ulcerative colitis, rheumatoid arthritis, ankylosing spondylitis, psoriasis, psoriatic arthritis, and Behçet’s disease.
The post Celltrion Biosimilars Update appeared first on Big Molecule Watch.
]]>Peacehealth St. Joseph Med. Ctr. v. Dep’t of Revenue, Wash., No. 97557-4 (Aug. 6, 2020).
]]>Problems with Traditional Financing
Marijuana is illegal under federal law. As such, cannabis-related businesses face stiff competition from illicit markets, and have limited access to U.S. capital markets and traditional financing. Businesses directly engaged in producing or selling marijuana, for example, were ineligible to receive PPP loans, despite being deemed essential in many states. Equity deals are also waning as stock value is dubious. Canadian cannabis stocks have performed poorly over the last 2 years partly due to strict regulations and criminal competitors despite sales being legal in Canada. These are vestiges of longstanding illegality. U.S. companies would likely face the same outcome even if Congress legalized marijuana in 2021.
Sale-Leasebacks
Cannabis operators have restricted financing options and many struggle with liquidity issues. In a sale-leaseback, a cannabis operator sells property (i.e., greenhouses, warehouses, dispensaries, etc.) to a REIT and then leases it back. This allows an operator to get fast cash without diluting ownership interests. However, sale-leasebacks have their own unique drawbacks. A sale-leaseback is ultimately the sale of an asset, even if operations remain the same. There are only a handful of cannabis REITs for operators to work with considering the industry’s age. Lease terms tend to reflect the general lack of options and the inherent risks in working with cannabis-related tenants (as previously discussed in this blog). Leases are often long-term (15 years or more) net leases with high cap rates, and adding rent as an expense reduces EBITDA.
Debt Financing
Obtaining a short term loan is generally more preferable than getting locked into a long-term, high-cost lease for a cannabis operator, but the same endemic barriers apply to debt financing. Cannabis is a fledgling industry with few experts. Valuating collateral is a much more difficult task for lenders without the wealth of background knowledge typically available in a deal. Federal law also restricts the field to private lenders despite bipartisan support for the SAFE Banking Act. Despite these factors, in order to get a loan, cannabis-related companies basically need to show lenders cash and positive balance sheets. This disqualifies most operators, but ramping up debt financing seems like the next logical step for thriving, multi-state operators. Indeed, Curaleaf, one of premier multi-state operators in the U.S., closed a $300 million loan early this year and a $5.5 million sale-leaseback in July. For the vast majority of small cannabis operators and retailers precluded from such loans, Leaflink has the potential to broaden access to liquidity.
]]>To help you keep abreast of relevant activities, below is a breakdown of some of the biggest COVID-19 driven events at the federal and state levels to impact the Consumer Finance Services industry this past week:
Privacy and Cybersecurity Activities
Privacy and Cybersecurity Activities:
For the full notification, click here.
The motion for a preliminary injunction was filed by California Attorney General Xavier Becerra, along with city attorneys from Los Angeles, San Diego and San Francisco. as part of a lawsuit filed in May. The suit complains that Uber and Lyft gain an unfair competitive advantage by misclassifying workers as independent contractors and are depriving drivers of the right to minimum wage, overtime, access to paid sick leave, disability insurance and unemployment insurance. Reclassifying such drivers as employees would likely cause Uber and Lyft to incur great additional expense as the drivers would become eligible for any employee benefits they offer to employees such as retirement and health plans. If the company’s don’t offer a retirement plan, it would then have to enroll them into CalSavers.
Uber and Lyft appealed the granting of the preliminary injunction in the court that issued it but that appeal was rejected on August 14. Both companies then filed for an emergency stay at the appeals court and threatened to cease all operations in California if the stay was not granted. On August 20, the appeals court granted the emergency stay of the preliminary injunction until the court hears the appeal of the grant of the injunction, provided the companies file, by September 4, a preliminary plan for complying with AB5, should they lose the appeal and Proposition 22 (Prop 22) does not pass in November. Arguments in the case are set for mid-October.
Uber and Lyft (along with DoorDash and Postmates) were successful in getting Prop 22 on the November ballot. Prop 22 is a referendum to keep rideshare and delivery drivers as independent contractors. That proposition would create a third classification of workers and change the California Labor laws to grant drivers certain protections, including a wage of 120% of minimum wage, thirty cents per mile reimbursement for expenses, a healthcare stipend, and certain automobile and accident insurance.
So Prop 22 and AB5 may converge this Fall as It is possible that the appeals court could uphold the injunction, requiring the rideshare drivers to be treated as employees in October, only to have Prop 22 pass in November, reclassifying them back to independent contractors.
]]>
Shortly after OCR announced its reversal of the nondiscrimination requirement based on gender identity and sexual orientation, various interest groups began mounting legal challenges. With the order issued by EDNY on August 17, 2020, we are already seeing evidence of the legal battles likely to ensue over the definition of “on the basis of sex,” placing certain parts of OCR’s final rule in legal limbo.
On August 17, the EDNY issued a significant order that halted the implementation and enforcement of OCR’s repeal of the 2016 definition of “on the basis of sex.”[1] The court assailed OCR’s underlying rationale behind the rule change, finding the agency’s actions as arbitrary and capricious and violating the Administrative Procedure Act (APA) because OCR failed to appropriately consider the effect of the Bostock ruling on its proposed changes. In particular, the court took issue with OCR’s failure to address the countervailing ruling despite having several days before publication of the rule in the Federal Register to do so and despite previously recognizing that a ruling in Bostock would have “ramifications” on the proposed rule. The court went on to say that the fact OCR announced the forthcoming publication of the final rule a few days before the Bostock ruling “might even suggest to a cynic that the agency pushed ahead specifically to avoid having to address an adverse decision.” While the order is not dispositive of the legal validity of OCR’s rollback of nondiscrimination protections based on gender and sexual identity (as it only stays the repeal), it leads the way to the inevitable legal battles to come for OCR regarding the Section 1557 rule changes.[2]
There are four additional lawsuits pending in federal court challenging the rule (and potentially more to come), each of which seeks to abandon all or parts of the rule and preclude OCR from instituting or enforcing its revised regulations. Below is a short description of each case:
The Attorney General for Washington State contends the final rule is “contrary to federal law and the Constitution because the final rule permits unlawful discrimination and contravenes the fundamental premise of the ACA to increase the number of people who have healthcare insurance.” In particular, the complaint challenges the legality of OCR’s decision to: (1) remove definitions for sexual orientation, gender identity, and sex stereotyping from the definition of “sex”; (2) eliminate notice and tagline requirements for significant communications; (3) narrow the scope of covered entities under the law; and (4) extend Title IX religious exemptions. The complaint argues these changes violate the APA, exceed OCR’s authority under Sections 1554 and 1557 of the ACA, and violate the Equal Protection and Due Process requirements of the Fifth Amendment.
The case was filed by a coalition of health care facilities, advocacy groups and individual physicians. The complaint takes aim at a number of the final rule’s changes, including the elimination of notice and tagline requirements and other protections afforded to individuals with limited English proficiency (LEP). The complaint alleges the final rule: (1) is arbitrary and capricious and violates the APA; (2) is not in accordance with law in light of the Bostock ruling and based on “the well-established understanding of ‘sex’ under longstanding civil rights laws”; (3) exceeds the agency’s statutory authority, alleging Congress did not confer upon OCR authority to alter Section 1557’s statutory terms; (4) violates Equal Protection and substantive Due Process protections under the Fifth Amendment; (5) violates LGBTQ individuals’ right to free speech; and (6) violates the Establishment Clause under the First Amendment.
The complaint raises claims similar to those brought in Whitman-Walker. The complaint, among other things, alleges that rolling back definitions of discrimination “on the basis of sex” is contrary to law and inconsistent with the APA standards. The complaint also challenges the final rule’s interpretation of “health program or entity” and its elimination of protections against discrimination on the basis of association.
The complaint broadly critiques OCR, alleging that the 2020 rulemaking was implemented with the purpose of undermining the ACA’s Section 1557 nondiscrimination protections, and that OCR pushed the revised regulations forward despite “the outpouring of comments opposing the massive rewrite.” In addition, the complaint contends that various aspects of the final rule are arbitrary and capricious and contrary to law, including the rule’s elimination of critical access provisions and protections based on gender identity and sexual orientation.
Collectively, current litigation efforts pose a legitimate hurdle to the implementation and enforcement of the final rule, at least as originally written by OCR. Given the uncertainty sowed by the pending litigation, covered entities should avoid overhauling current nondiscrimination policies and procedures until the litigation dust settles. This advice is underscored by the recent injunctive order from the EDNY, which behooves covered entities to maintain policies that forbid discrimination on the basis of sexual identity and gender orientation. As such, we recommend that covered entities monitor developments regarding ongoing litigation to best assess the force and validity of changes under the final rule and determine their respective legal obligations.
[1] Walker v. Azar, No. 20-CV-2834-FB-SMG (E.D.N.Y. Aug. 17, 2020).
[2] See, e.g., New York v. U.S. Dep’t of Health & Human Servs., No. 1:20-cv-05583 (S.D.N.Y. July 20 2020).
[3] No. 2:20-cv-01105 (W.D. Wash. July 16, 2020).
[4] No. 1:20-cv-01630 (D.D.C. June 22, 2020).
[5] No. 1:20-cv-11297 (D. Mass. July 09, 2020)
[6] No. 1:20-cv-05583 (S.D.N.Y. July 20 2020).
]]>Including the project’s general contractor, eight different contractors have placed eight liens on the CocoWalk Shopping Center in Miami, FL neighborhood of Coconut Grove as of July 23, 2020, according to lien affidavits filed with the Miami-Dade County clerk’s office. Mechanics liens are used to ensure a property owner can not sell or refinance the property until the lien is removed to help force payment.
The property owner of the 165 thousand-square-foot shopping center upon 3 acres of land is Frit CocoWalk Owner, LLC.
The eight contractors are owed a total of $462,939.22 for renovations taking place at the CocoWalk Shopping Center, which is located at 3015 Grand Ave., Coconut Grove, FL.
According to the lien affidavits, the largest mechanics lien filed against the property was from subcontractor Precision Air Conditioning, Inc. against fellow subcontractor LTCI. On April 10, 2020, Precision Air Conditioning filed a lien claiming they are owed $317,755 for their HVAC installation services, which accounts for 69% of the total funds still withheld from the eight contractors.
LTCI was featured in another lien claim on July 6, 2020, as subcontractor Walker Commercial Interiors claims they are owed $34,911 pursuant to a contract that spanned from February 2020 to April 2020.
Precision Air Condition is also faced with a lien filing against them, as subcontractor AMI Distributors claims they are owed $18,755.30 as of April 13, 2020.
The project’s general contractor, Juneau Construction Company, has been subject to at least two mechanics lien filings that total $43,503.51 since May 2020. Subcontractor RD Souza, Inc. filed the largest claim against Juneau Construction Company on May 28, 2020, claiming $31K in unpaid work. The general contractor’s second claim came on July 14, 2020, from Hoover Architectural, which claims they are owed $12,474.55.
On July 14, 2020, two separate claims were placed on the CocoWalk Shopping Center from two different contractors. The largest of the two was valued at $17,762.50 from Concrete Imaging & Cutting, Inc. against Halloran Construction Group. Also on the 14th, C.R. Laurence Co., Inc. filed a $12K lien claim against United Glass Systems Corp.
To date, the latest lien was filed on July 23, 2020, by Builder Services Group, which claims they are owed $17,810 from Mocca Construction.
An additional three shopping centers in the metro Miami area are also faced with lien claims since August 2020. The latest lien filings were placed on the Sawgrass Mills shopping mall in Sunrise, FL, which has eight lien claims valued at $2.5M. In Plantation, FL, the Westfield Broward Mall is linked to nearly $9M in unpaid construction work, while the Esplanade at Aventura in Miami is facing 25 mechanics liens totaling $23.1M.
Between three metro Miami shopping malls at Sawgrass Mills, Esplanade at Aventura, and the Westfield Broward Mall, at least 43 contractors are owed $34.4M as of August 2020.
The post Miami’s CocoWalk Mall Hit With $500K in Construction Liens appeared first on Levelset.
]]>