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.

1. Create content that you would want to read. I always step into the shoes of my target audience. Address their pain points. Focus on what they care about. Write in their language. Post original content as well as curated content (articles you share). I use an editorial calendar to help me manage my posts.
2. Spotlight others and build stronger relationships by tagging others in your posts using the @ sign. Always do this if you mention someone’s work or their upcoming speaking engagement. No one dislikes a compliment ever. If you’re trying to forge closer relationships with someone, a great way to do this is by highlighting them in a post. I try to dedicate at least one or two posts a week to others.
3. Be vulnerable and authentic. Don’t be afraid to share personal experiences, stories of your successes and failures and the challenges you have faced along the way. The stories make you stand out from others. They make you relatable. They make you more human. And being vulnerable right now. for example, I had a pretty crappy 2019, and I sometimes share what I learned to help others who are going through similar experiences.
4. Teach and help others. Your connections and followers are on LinkedIn to learn how to advance their careers, brands and businesses. Give practical tips they can use.
5. Have patience. Social media success won’t be achieved overnight. It takes your time and commitment and participation as well as your employees’ help. Social media success is not just about likes. It’s about helping your followers.
6. Use visuals: If your followers aren’t drawn in at the beginning, they’ll scroll past your post.
7. Use (the right) hashtags. Hashtags help your content be found. This enables you to reach a wider audience than you would if you did not use them. So for example, if you use a hashtag, you should actually use 3 to 7 hashtags, your post can be seen by those individuals following the hashtag and 2nd and 3rd degree connections. Finding the right hashtags takes time and effort but is well worth it.
8. Use LinkedIn’s new algorithm to your advantage (respond to all comments on your posts, ask others to like and share important posts)
9. Share your posts to LinkedIn groups to expand your network and reach.
10. Post consistently (at least a few times a week – there is really no bad day to post now during the pandemic as many people are on social all the time) to stay top of mind with your network.

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:

• safe access not only to and from the site but also in and around the site particularly in relation to shared spaces such as ablution facilities and canteen areas;
• provision of adequate PPE and ensuring sufficient replacements are readily available;
• enhanced hygiene required on site for all users;
• dovetailing protocols of various role-players from employers to suppliers to avoid miscommunication, conflict and unnecessary interaction; and
• providing ongoing education and platforms for communication to raise and maintain awareness and vigilance.

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:

1. The employer must have objective evidence that an applicant or employee cannot do the job or poses a significant safety risk, even with a reasonable accommodation.
2. To disqualify an applicant or employee from the job for safety reasons, the evidence must show they pose a “significant risk of substantial harm.” The applicant or employee cannot be disqualified because of “remote or speculative risk.”
3. To make sure there is enough objective evidence regarding the ability to safely and effectively perform the job, the employer is permitted to ask the applicant or employee to undergo a medical evaluation.

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:

1. Underlying Medical Condition. If the applicant or employee takes prescription opioids to treat pain, the medical condition causing pain may qualify as a “disability” under the ADA requiring a reasonable accommodation.
2. Side Effects of Prescription Opioids. If the applicant or employee takes prescription opioids that have side effects that interfere with everyday functioning, the medical conditions related to the side effects may qualify as “disabilities” under the ADA requiring a reasonable accommodation.
3. Opioid Addiction. If the applicant or employee has an opioid addiction (sometimes called “opioid use disorder” or “OUD”), which is itself a diagnosable medical condition that can be an ADA disability, the employer may be required to provide a reasonable accommodation.  However, even if the applicant or employee has OUD, the employer may deny an accommodation if the opioid use is illegal.
4. Medical Conditions Related to Opioid Addiction. If the employee has a medical condition associated with opioid addiction, such as major depression or post-traumatic stress disorder, the employer may be required to provide a reasonable accommodation.
5. Recovery From Opioid Addiction. An applicant or employee who had a past disability may be entitled to a reasonable accommodation, including, for example, an altered work schedule to enable the applicant or employee to attend a support group meeting or therapy session that would help prevent relapse.

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.

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:

• Banks must control and oversee the programs, including approval of origination, marketing, website content, credit terms, credit models, and approval/denial of credit policies determining whether credit is extended and under what terms.
• Banks must be named as the lender, fund loans from their own funds, and approve major third-party subcontractors, consistent with federal bank regulatory guidance.
• The online platforms must also have a compliance management system, including maintaining a consumer complaint system, and must comply with regulatory guidance for third party arrangements.

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:

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:

• Determine the third country (or countries) to which personal data is transferred and the basis of such transfer(s) (e.g., SCCs, Privacy Shield, etc.) – keeping in mind the broad notion of “transfer” also includes access, as well as the fact that some transfers may be to other related entities within a corporate family as well as third parties or sub-contractors of third parties.
• Review local and domestic laws in each such third country that is not deemed adequate by the EU, in order to determine whether such laws enable public authorities to access the personal data of EU (EEA) data subjects;
• Assess whether the recipient(s) of personal data within a third country that is not adequate and that does not provide similar protection is in fact subject to the domestic laws granting access to public authorities – and whether such access is limited to what is necessary and proportionate;
• Determine what additional safeguards, if any, might be applied to protect the personal data (e.g., encryption) and whether the domestic law at issue provides effective remedies/redress for data subjects.

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.

One Big Thing in Michigan COVID-19 News:

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.

What’s Next: 

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.

Go Deeper: 

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.

Why it Matters: 

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.

The order is available here.

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 the Share Reserve – Review your share reserve to confirm that the plan has a sufficient number of shares remaining for future awards. Some companies may know exactly how many shares they will need for the upcoming year. Others may prefer to rely on metrics like burn rate (generally, the rate of share usage) over the past three years to help project future usage. If the company anticipates a need to replenish the equity plan reserve, then review plan documents and governing law to determine what is required for board of directors and/or shareholder approval.

• Check the Expiration Date. New awards may not be granted under an expired plan, so confirm whether the plan has an expiration date. If the plan is expired, the term will have to be extended or a new plan should be adopted. The best approach depends on the types of awards to be issued and corporate governance requirements (and sensitivities).

• Repricing?  Some companies are realizing that options granted in early years may be “underwater” – i.e., the exercise price is greater than the current fair market value of the underlying stock.  In that case, there may be a desire to reprice the awards because underwater options do not provide the intended incentives to executives. Be sure to review plan documents to determine whether repricing is permitted in this situation and whether shareholder approval is required. Also, consult your advisors to be sure that the repricing does not interfere with ISO treatment or violate Section 409A of the Internal Revenue Code.

• Review Performance Metrics.  If vesting of any outstanding awards is contingent on the attainment of certain performance metrics, review the metrics to determine if they are still reasonable and sufficiently motivating to executives. If the recent economic slowdown significantly impacted an executive’s ability to hit certain targets, then the award will no longer provide the desired incentives.  As with repricing, be sure to review plan documents to determine whether (and how) performance metrics can be modified.

• Governance.  Double-check plan/corporate governance and documentation requirements.  For example:
  • Review the plan document and award agreement to determine what needs to be approved by the board of directors and/or shareholders and check corporate records to confirm that such approvals have been sufficiently documented.
  • Confirm receipt of fully executed award agreements and, if required, shareholders agreements for all outstanding awards.

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?

Disorderly Conduct Penalties

Depending on the severity of the disorderly conduct ticket, several different penalties could arise, such as: 

• Fines. The highest possible fine is $1,000 and the amount owed is determined by the court.
• Time behind bars. A jail sentence of up to 90 days can be mandated.
• A probation agreement. This may include an order for the defendant to be enrolled in counselling such as therapy or anger management courses.
• Community service hours. The court may require the defendant to complete services for public institutions in exchange for a smaller sentence.
• Weapon restrictions. If a firearm was used in the disorderly conduct incident, the court can order that the defendant may not possess a firearm for a certain length of time.
• A restraining order. This would include an order to avoid contact with the victim and his or her whereabouts, such as home and place of employment.

Collateral Consequences

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. 

Contact a Milwaukee, WI Criminal Defense Lawyer

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

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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

• Memphis Ready Mix, 15-CA-259794: The Region submitted this case for advice as to whether the Employer Memphis Ready Mix, a concrete producer and distributor, violated Section 8(a)(5) by refusing to bargain over the Union’s proposals for paid sick leave and hazard pay due to the COVID-19 pandemic.  The Division found that Memphis Ready Mix was within its rights to refuse to bargain about these issues, where the CBA was still in force, it expressly covered leave of absence and wage issues, and included broad management rights and zipper clauses.

Protected Concerted Activity

• Marek Bros. Drywall Co., 16-CA-258507: The Region submitted this case in relation to an employee who was fired after engaging in a protected activity – voicing concerns at a group meeting about the lack of hand sanitizer on the work site. Although the attorney writing for the Division noted that the charging party “raised serious concerns over the lack of available water and hand sanitizer for all employees on the jobsite,” he ultimately found “insufficient evidence of knowledge or animus on this record.”
• Hornell Gardens, LLC, 03-CA-258740 and 03-CA-258966: The Region submitted two COVID-19-related cases for advice. The first was whether Hornell Gardens, a healthcare facility, discharged two nurses because of alleged protected concerted activity in violation of Section 8(a)(1) of the Act. The two nurses at issue were terminated after one refused to work because of a policy requiring employees to share isolation gowns and the other refused to work because the employee was required by another employer to  self-quarantine due to a potential exposure while at Hornell Gardens. The Division rejected the assertion that these employees’ actions or the issues they raised to Hornell Gardens constituted concerted activity for mutual aid and protection. The Division also found that the Employer’s comment to an online publication that it would report the nurses to the State of New York licensing authority for quitting without notice did not constitute a coercive threat.

Duty to Provide Information

• Crowne Plaza O’Hare, Case 13-CA-259749: The Region submitted this case for advice about whether the Employer Crowne Plaza O’Hare, a hotel, violated Section 8(a)(5) by refusing to provide information requested by the Union about the hotel’s decision to temporarily close and layoff all staff as a result of the pandemic.  The attorney writing for the Division agreed that the Employer did not violate Section 8(a)(5) by refusing to provide the requested financial information, which included information pertaining to CARES Act loans or financial assistance, because it was not presumptively relevant.
• ABM Business and Industry, 13-CA-259139: The Regional submitted this case, stemming from a pending grievance over COVID-19 related layoffs, for advice as to whether the Employer’s failure to provide communications between the business and its clients related to the layoff violated Section 8(a)(5). The attorney writing for the Division found that there was no showing that the information, which did not have to do with the terms and conditions of employment, was presumptively relevant and recommended dismissal.

For more information on the Division’s advisory memos see here.

Is a SICAV a PFIC Taxable and Reportable in the US?

Is a SICAV a PFIC for IRS Filing

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.

Understanding SICAV Basics

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.

Are All SICAV PFIC?

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.

How to IRS Report the SICAV in the US?

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.

How is a SICAV Taxed in US?

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.

What if you Missed SICAV IRS Compliance?

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: About our International Tax Law Firm

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.

• Golding & Golding’s Case Accomplishments
• Golding & Golding Testimonials from prior clients

*Please beware of copycat tax and law firms misleading the public about their credentials and experience.

Less than 1% of Tax Attorneys Nationwide Are Certified Specialists

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.

Recent Golding & Golding Case Highlights

• We represented a client in an 8-figure disclosure that spanned 7 countries.
• We represented a high-net-worth client to facilitate a complex expatriation with offshore disclosure.
• We represented an overseas family with bringing multiple businesses & personal investments into U.S. tax and offshore compliance.
• We took over a case from a small firm that unsuccessfully submitted multiple clients to IRS Offshore Disclosure.
• We successfully completed several recent disclosures for clients with assets ranging from $50,000 – $7,000,000+.

How to Hire Experienced Offshore Counsel?

Generally, experienced attorneys in this field will have the following credentials/experience:

• 20-years experience as a practicing attorney
• Extensive litigation, high-stakes audit and trial experience
• Board Certified Tax Law Specialist credential
• Master’s of Tax Law (LL.M.)
• Dually Licensed as an EA (Enrolled Agent) or CPA

Interested in Learning More about Golding & Golding?

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:

Federal Activities

State Activities

Privacy and Cybersecurity Activities

Federal Activities:

• On August 21, 2020, U.S. Secretary of Education Betsy DeVos implemented President Donald Trump’s memorandum extending relief on federally held student loans to borrowers through the end of the year. The Coronavirus Aid, Relief, and Economic Security (CARES) Act passed earlier this year suspends payments on federally held student loans until September 30, 2020. The memorandum directed Secretary DeVos to “provide such deferments to borrowers as necessary to continue the temporary cessation of payments and the waiver of all interest on student loans held by the Department of Education until December 31, 2020.” For more information, click here.

• On August 21, 2020, the Federal Reserve Board, the Federal Deposit Insurance Corporation, the Financial Crimes Enforcement Network, the National Credit Union Administration, and the Office of the Comptroller of the Currency issued a joint statement clarifying that Bank Secrecy Act due diligence requirements for customers who may be considered “politically exposed persons” (PEPs) should be commensurate with the risks posed by the PEP relationship. For more information, click here.

• On August 21, 2020, the U.S. Department of the Treasury published a fact sheet on Treasury’s role as lender to the U.S. Postal Service (USPS). The fact sheet emphasized that Treasury and the USPS signed a $10 billion mutually agreeable term sheet in lending authority pursuant to the CARES Act. For more information, click here.

• On August 20, 2020, the U.S. Food and Drug Administration (FDA) issued a series of warning letters to firms marketing and selling potentially fraudulent consumer health products that claim to prevent, treat, mitigate, diagnose or cure COVID-19. The recent action is part of the FDA’s broader initiative aimed at protecting consumers from firms selling unapproved products and making false or misleading claims, including, by pursuing warning letters, seizures, injunctions or criminal prosecutions against products and firms or individuals that violate the law. For more information, click here.

• On August 19, 2020, 15 Democratic Senators wrote a letter to the Director of the Federal Housing Finance Agency expressing concern over the announcement that “Fannie Mae and Freddie Mac (the Enterprises) will begin charging an additional 50 basis points in up-front fees for all refinance loans delivered to the Enterprises on or after September 1, 2020.” The senators are concerned the raised fee will make it more expensive for homeowners to refinance their mortgages in the midst of the COVID-19 pandemic and corresponding economic downturn. For more information, click here.

• On August 19, 2020, the Federal Reserve Board and the Federal Open Market Committee released the minutes of the Committee meeting held on July 28-29, 2020. The minutes indicate that, even as fears of COVID-19 resurgence grew, broad equity price indexes remained roughly flat. During this period, however, treasury yields, and other sovereign yields declined, and the U.S. dollar weakened. For more information, click here.

• On August 14, 2020, President Trump signed a bill amending the Servicemembers Civil Relief Act (SCRA) to expand lease protections for servicemembers involved in the response to COVID-19. For more information, click here.

State Activities:

• On August 20, 2020, the Supreme Court of Virginia issued its Ninth Order Extending Declaration of Judicial Emergency in Response to COVID-19 Emergency. The order states that the moratorium against issuing writs of eviction pursuant for failure to pay rent will cease to have effect after September 7, 2020. For more information, click here.

• On August 19, 2020, the Tennessee Department of Commerce and Insurance (TDCI)’s Securities Division announced its participation in the COVID-19 Enforcement Task Force, an international investor protection initiative to crack down on schemes related to the ongoing COVID-19 pandemic. The North American Securities Administrators Association (NASAA), of which Tennessee is a member, is coordinating the task force. For more information, click here.

• On August 14, 2020, New York Attorney General Letitia James extended a moratorium on collecting certain debts that are owed to the State of New York. The order pertains to medical debt owed to state hospitals, student loans owed to SUNY campuses, and debt related to oil spill cleanup, removal, property damage, and breach of contract owed to state agencies. The new order remains in effect until September 4. For more information, click here.

• On August 13, 2020, three Oregon banks and a trade association filed a declaratory action requesting relief from state legislation alleged to retroactively apply lending obligations more onerous than the CARES Act. The state legislation, House Bill 4204, applies to lenders of commercial and residential loans secured by real estate in Oregon and creates restrictions against lending activity, imposes affirmative obligations upon lenders, and creates a private cause of action for borrowers. For more information, click here.

• On July 28, 2020, Nevada’s Department of Business and Industry (Department) confirmed that a waiver that permitted telework for mortgage company employees has expired. Earlier this year, the department allowed mortgage company employees to telework as the result of the COVID-19 pandemic. For more information, click here.

Privacy and Cybersecurity Activities:

• On August 20, 2020, the Cybersecurity and Infrastructure Security Agency (CISA) released a joint statement with other security agencies regarding the Election Infrastructure Government Coordinating Council. The Committee is “better prepared than ever before[,]” as many individuals plan to change how they vote during the pandemic. Officials are “swiftly adapting their operations to ensure every voter is able to cast a ballot in a safe and secure manner.” To read the full statement, click here.

• On August 20, 2020, it was reportedthat various groups, including Consumer Reports, are calling on California lawmakers to ban contact-tracing data use for commercial purposes, including targeted advertising. The calls arise as contact-tracing apps are making their way into individuals’ pockets. To read the full report, click here.

• On August 20, 2020, the PCI Security Standards Council revised the implementation dates for PCI P2PE Security Requirement 18-3. The changes are made due to “the impact COVID-19 has had on implementations[.]” The new dates for:

• • Phase 2 (Implement Key Blocks for external connections to Associations and Networks) is January 1, 2023.
  • Phase 3 (Implement Key Block to extend to all merchant hosts, point-of-sale (POS) devices, and ATMs) is January 1, 2025.

    For the full notification, click here.

• On August 19, 2020, the Federal Trade Commission (FTC) will be working with the U.S. Census Bureau to help guard against potential scams related to the 2020 Census. For those who have not responded, Census officials will be visiting homes to help complete the count. Due to COVID-19, officials are concerned that bad actors wearing facemasks will use them as a disguise to scam the public. Click hereto check out the FTC’s guidance to avoid potential scams.

• On August 18, 2020, CISA updated its guidance, due to new COVID-19 developments, for the Essential Critical Infrastructure Workers Guidance. The updates provide guidance on “how jurisdictions and critical infrastructure owners can use the list to assist in prioritizing the ability of essential workers to work safely while supporting ongoing infrastructure operations across the nation.” For additional information, click here.

• On August 17, 2020, the FTC shared best marketing principles from the International Consumer Protection Enforcement Network (ICPEN). The FTC and parents know that “kids spend a huge amount of time online, especially now with COVID-19 school and camp closures.” The FTC recommends that business leaders check out ICPEN’s best practicesso they “can understand the range of issues that concern consumer protection agencies and the variety of approaches they use to ensure marketing to children online complies” with regulations. To check out the FTC’s post, click here.

• Reportsare coming in that school districts, health departments, and state agencies across the country are unsure whether they can release COVID-19 figures to the public, despite current federal guidance. Leaders refer to medical and educational privacy laws as placing restrictions on their ability to release data.
  • For example, on August 20, 2020, Governor of Tennessee, Bill Lee, said during a press conference that he wants to make school COVID-19 figures open to the public. Governor Lee is currently seeking permission from the federal government to specifically “include individual school numbers.” To read the full report discussing Governor Lee’s statements, 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.

1. EDNY order halts the implementation and enforcement of OCR’s changes to discrimination “on the basis of sex.”

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]

1. Other litigation developments related to Bostock and the final rule.

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:

• State of Washington v. United States Department of Health and Human Services:[3]

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.

• Whitman-Walker Clinic v. United States Department of Health and Human Services:[4]

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.

• Boston Alliance of Gay, Lesbian, Bisexual and Transgender Youth United States Department of Health and Human Services:[5]

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.

• New York v. United States Department of Health and Human Services:[6]

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.

1. What the current landscape means for covered entities.

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.

8 Contractors Owed $462K at the CocoWalk Shopping Center in Coconut Grove

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.

Miami Malls Collectively Owe $35 Million to Contractors

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.

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