MSLaw Blog

The increased use of agricultural land for utility scale solar generation facilities (solar fields that generate power for sale) has many Maryland counties struggling with how to balance two public interests – renewable energy and farmland. The ideal location for a utility scale solar generation facility (solar farm) is a large swath of flat, cleared land (i.e., farmland). The availability of agricultural land, either through purchase or lease, coupled with Maryland’s renewable energy goals and the community solar pilot project (discussed

As 2018 draws to a close and much of the world is celebrating the holiday season, the immigration world is preparing to enter another H-1B lottery season. For an overview of the H-1B program and H-1B lottery, please see our December 3 blog. Current H-1B Adjudication Trends Until last year, receiving a Request for Evidence (RFE) was the exception rather than the rule and a denial was a rare occurrence. Now, it is fairly common for an H-1B petition to result in the

On December 6, 2018, in an unreported decision, Maryland’s Court of Special Appeals permitted plaintiffs in product liability litigation in Baltimore City Circuit Court to obtain broad discovery into joint defense agreements, communications between a defendant and its consulting expert, and documents in a sealed insurance litigation.  The Court of Special Appeals permitted such discovery because it found the appeal of the defendant, Union Carbide Corporation (“UCC”), to involve issues not ripe for decision under Maryland’s collateral order doctrine. According

Tipsy employees create a slew of risks for employers, and the annual holiday party may be one of the only times in the year when employees have the chance to imbibe together. This doesn’t mean that employers have to be the fun police, but they should take care to minimize risks wherever possible. An employer’s liability for the negligence of its employees following the consumption of alcohol furnished by the employer is called “social host” liability, and varies by state. Maryland’s social host

This year, 2017-2018, the Supreme Court issued numerous cases impacting employers. Here is an overview: Janus v. AFSCME: The case disputed the validity of state laws permitting public sector unions to collect “fair share” or “agency” fees from represented nonmembers. Despite precedent upholding agency fee arrangements, the Supreme Court rejected stare decisis and struck down the fee arrangements stating that they violated the First Amendment. The Court held that public sector unions cannot compel nonmembers to pay fees for collective bargaining services of a

The Department of Homeland Security (DHS) published today in the Federal Register a notice of proposed rulemaking that would change how employers file cap-subject H-1B petitions and how USCIS conducts the H-1B lottery process. The proposed rule would require employers to first electronically register with U.S. Citizenship and Immigration Services (USCIS) during a designated registration period. The proposed rule would also reverse the order in which USCIS selects H-1B petitions under the H-1B cap and the advanced degree exemption. Background on the H-1B

As attracting and retaining employees grows increasingly critical to a business’s success, the pressure is mounting for employers to ensure accurate and consistent execution of leave policies, sometimes across multiple corporate locations nationwide. However, it is becoming more and more difficult for employers to keep up and comply with the changing regulations regarding employee leaves of absence. With additional state and local leave and paid leave laws coming into effect and with the trend of more jurisdictions considering adopting such

On a day yielding no sunshine, but rather the first snow of the winter season in parts of Maryland, the Maryland Court of Special Appeals reissued its decision inBoard of County Commn. of Washington County v. Perennial Solar, LLC, (citations currently unavailable), as a reported opinion. Perennial Solar may now be used as precedent for the proposition that state law preempts local zoning authority with respect to solar fields. On August 28, 2018, the Court of Special Appeals issued unreported opinion, Board of County

The DOL recently released its Fall Regulatory Agenda, signaling its intent to act on some important issues under the Fair Labor Standards Act (“FLSA”). Three items of note are on the agenda with upcoming dates: changes to the salary level for the overtime exemption; a joint employer rule; and clarification of regular rate and basic rate requirements. FLSA Salary Test In 2016, a Texas court struck down the Obama administration’s changes to the FLSA overtime regulations governing the standard for determining when an

On October 19, 2018, the IRS issued highly anticipated proposed regulations on opportunity zones. The guidance and interpretations in these regulations provide a clearer path for investment in the new “Opportunity Zone” program, a program that incentivizes the movement of capital into those low-income communities in all 50 states, the District of Columbia, and 5 U.S. territories now designated as qualified opportunity zones (“Opportunity Zones”) by offering taxpayers who invest in these Opportunity Zones 3 separate tax benefits – (1) temporary capital gain deferral;

The U.S. Department of Treasury (“Treasury”) is expected to issue regulations providing administrative rules and guidance to clarify the operation and application of the Opportunity Zone program (the “OZP”); such regulations are currently under review by the Office of Management and Budget as of the date hereof. This long-awaited Treasury guidance is expected as early as the end of October 2018. In December 2017, Congress passed the Tax Cuts and Jobs Act, which amended the Internal Revenue Code (the “Code”) to

On October 1, 2018, Maryland Senate Bill 853, also known as Maryland’s General Contractor Liability for Unpaid Wages Act, went into effect, expanding the liability of a general contractor on a construction project under the Maryland Wage Payment and Collection Law. In the paragraphs below, we detail what this means for contractors, subcontractors and their employees.   Generally, the Maryland Wage Payment and Collection Law requires that an employer set regular pay periods and pay employees at least once every two

In the months since the U.S. Supreme Court handed down its landmark decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31,[1] striking down compulsory agency fees for public employees on First Amendment grounds, there has been extensive public discussion of the ruling’s impact on public sector union finances, public employer operations, and even the potential implications for other compelled-fee organizations like bar associations. But there is another aspect of the court’s ruling, which has received

In our July 12, 2018 blog, we discussed a new U.S. Citizenship and Immigration Services (USCIS) policy requiring the issuance of a Notice to Appear (NTA), which initiates removal proceedings against a foreign national, upon the denial of an immigration benefit request where the denial renders the applicant “not legally present” in the United States. As we noted at the time, the new policy marked a potentially significant departure from previous practice and the ramifications were unknown, but concerning. USCIS had

** Important Note ** Small business size status will soon be determined by average revenues for five years, up from three years.  This exciting development will enable many businesses to remain in the small-business Government contracting category for years longer. This blog describes passage of the Small Business Runway Extension Act of 2018 by the House, and the Senate surprised with quick passage.  The bill now goes to the President, whose signature is expected.   Watch here for a future post about the effective

“Supervisory guidance does not have the force and effect of law, and the agencies do not take enforcement actions based on supervisory guidance.” On September 11, 2018, the Bureau of the Consumer Financial Protection, together with the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the National Credit Union Administration and the Office of the Comptroller of the Currency (the “agencies”) issued a joint statement clarifying the role of supervisory guidance (the “Joint Statement”), stating unequivocally that “[s]upervisory

During its 438th session, the Maryland General Assembly passed four bills that affect the Maryland General Corporation Law (the “MGCL”), all of which were supported by the Business Law Section of the Maryland State Bar Association. This update is intended to identify (i) bills that were passed affecting the MGCL in the last legislative session, and (ii) laws that will take effect on October 1, 2018. In the 2018 legislative session, the Maryland General Assembly: repealed the provision requiring articles of transfer; limited

On September 17, the President directed the U.S. Trade Representative (“USTR”) to impose additional tariffs on importers of Chinese goods. The official statement is available here.     To recap, this is the third tranche of tariffs on imported Chinese goods. The first tranche, which we blogged about here, went into effect on July 6, and covered 818 tariff schedule categories. To request an exclusion from the tranche one tariff increase, an importer must file its request with the Office of the USTR by October 9,

For better or worse, when your parents disapprove of the person you’ve chosen to marry, there’s not much recourse in the law (although some might call your parents’ attitude a form of intentional infliction of emotional distress). But according to one New York appellate court, the law does protect employees when their employer disapproves of their spouse. What’s more, it doesn’t even matter whether the employee is actually married as long as the employer believes that to be the case, nor does it matter

The state of Delaware recently enacted an amendment to the Delaware Limited Liability Company Act (the “Act”), effective August 1, 2018, which allows a limited liability company to divide into two or more limited liability companies, with the assets, liabilities and duties allocated among those companies in a plan of division. In order to divide a limited liability company, new Section 18-217 of the Act provides that the original limited liability company must adopt a plan of division and file

They say you can’t stop progress. And growth and development is an inevitable part of progress. The State of Maryland and its more rural counties have made efforts to find some balance to the inevitable growth and development by providing incentives to farmers to preserve agricultural land and our rural areas.  Despite all of the growth and development in Maryland, agriculture still remains an important industry in Maryland, and particularly in some of the less urban metro areas. Fortunately, the

The rains over the past few months of summer piqued the curiosity of some Maryland property owners who now would like to know if: (1) neighbors are liable for flood damage to adjacent or nearby properties, and (2) they are able to redirect water from their properties when doing so adversely impacts other properties. Much of Maryland experienced record breaking levels of rainfall over the course of the summer. While the rains may have caused certain crops to flourish, the

The EU General Data Protection Regulation (GDPR) took effect on May 25, 2018. Potential fines for violating the GDPR include up to four percent of an organization's annual profits or €20 million (approximately $23 million), whichever is greater. Despite the risks associated with failing to meet the GDPR standards, many companies are still working towards compliance.   If you are among this group, it is critical to not give up but, rather, to focus on actively continuing efforts to achieve (and

Does Maryland law require that experts rely upon epidemiology to establish medical causation in a toxic exposures personal injury case? In Sugarman v. Liles, decided on July 31, 2018, the Maryland Court of Appeals strongly implied that this was so, which may have fundamental implications for toxic tort cases going forward in the state.  No. 80, Sept. Term, 2017, 2018 WL 3642143 (Md. July 31, 2018).   The Court of Appeals in Sugarman wrestled with whether a pediatrics and childhood lead poisoning expert witness in

The Delaware Court of Chancery fundamentally altered the M&A litigation landscape when it expressed its skepticism of disclosure-only settlements in the case of In re Trulia, Inc. Stockholder Litigation, 129 A.3d 884 (Del. Ch. 2016). There has subsequently been much written about Trulia and the relative scarcity of disclosure-only settlements in its wake. Of significantly lesser renown, the Court of Chancery further observed in Trulia that adversarial motions for attorneys’ fees, following a corporation’s “mooting” of plaintiff-stockholder disclosure claims through supplementary disclosures, are free of

In the evening of July 13, 2018 (Friday), U.S. Citizenship and Immigration Services (USCIS) posted new policy guidance giving immigration adjudicators marching orders to deny an immigration application or petition without having to first issue a request for evidence (RFE) or notice of intent to deny (NOID) if the original submission lacks sufficient initial evidence to establish eligibility. This new policy guidance, effective September 11, 2018, rescinds USCIS’s June 3, 2013 policy guidance and represents a drastic policy shift, potentially to

The Office of the U.S. Trade Representative (“USTR”) has published the procedures for an importer to request an exclusion from the first round of increased tariffs on Chinese goods, available here. See 83 Fed. Reg. 32,181-32,184 (July 11, 2018).   Our previous blog post, available here, described the tariffs and why they are being imposed, in detail. To have covered goods or materials exempted from the higher duties, an importer has almost 90 days, until October 9, 2018, to file an exclusion request with the

Patents are valuable intellectual property assets that grant their owners a limited monopoly over the sale and use of the patented subject matter for a fixed period of time. The patent permits its owner to recover potentially significant sums of money when their patents are infringed. Damages for patent infringement may include reasonable royalties, lost profits, and in the event of willful infringement, trebled damages. Each jurisdiction with a patent system grants patents that provide protection within that jurisdiction’s territory

Last month, the Environmental Protection Agency (“EPA”) issued an Advance Notice of Proposed Rulemaking (“ANPRM”), entitled “Increasing Consistency and Transparency in Considering Costs and Benefits in the Rulemaking Process.” (83 FR 114; June 13, 2018). The ANPRM is soliciting public comment on whether and how the agency should revise the way it weighs costs and benefits in making its regulatory decisions. Various environmental laws like the Clean Air Act, Clean Water Act, and the Safe Drinking Water Act require a cost-benefit analysis in certain circumstances to

On July 5, 2018, U.S. Citizenship and Immigration Services (USCIS) published new guidance that will generally require that USCIS issue a Notice to Appear (NTA), and thereby initiate removal proceedings, upon its denial of an immigration benefit request where the denial renders the applicant “not legally present” in the United States. This reflects a dramatic change in prior practice that may have far-reaching implications for many.   What Is an NTA? The issuance of an NTA is the government’s method for instituting

The EU General Data Protection Regulation (GDPR) took effect on May 25, 2018. Potential fines for violating the GDPR include up to four percent of an organization's annual profits or €20 million (approximately $23 million), whichever is greater. Despite the risks associated with failing to meet the GDPR standards, many companies are still working towards compliance.   If you are among this group, it is critical to not give up but, rather, to focus on actively continuing efforts to achieve (and

California enacted the California Consumer Privacy Act on June 28, 2018. This law broadly expands the rights of California residents in their personal information collected through online means. The law imposes requirements tied to disclosure of what personal data is collected, how it is used, and with whom a data collector shares this information. Individuals may opt out of having their data sold. Data collectors are also required to provide specific disclosures in connection with security breaches of the data.

A breath of fresh air and a second wind was breathed into dreams and potential plans for a large wind farm in Allegany County, Maryland. The Court of Special Appeals of Maryland in Dan’s Mountain Wind Force, LLC, et. al. v. Allegany County Board of Zoning Appeals, __ Md. App. __, __ A.3d __ (2018)(Case No. 804, September Term 2016; filed April 3, 2018), recently held that the Allegany County Board of Zoning Appeals (the “BZA”) did not properly apply the

On June 4, 2018, the United States Supreme Court issued its long-awaited opinion in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, ultimately siding with the baker who refused to make a wedding cake for a gay couple. Voting 7-2, the majority found that the lower court had inappropriately dismissed the baker’s religious beliefs and in doing so violated his First Amendment right to the free exercise of religion.  However, the majority opinion was narrow and focused largely on the Commission’s

As was widely expected, the United States Supreme Court has held that mandatory agency fees for public sector employees are an unlawful violation of individuals’ free speech rights under the First Amendment to the U.S. Constitution.  The 5-4 majority opinion in Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al., No. 16-1466, 585 U.S. ___ (June 27, 2018), written by Justice Alito, overturned Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977), a 40 year-old

If the parents have been deported and the 2,000 separated children are still in confinement in the United States, the crucial question is how to get them reunited with their parents very quickly. The 1980 Hague Abduction Convention is a potential mechanism to get separated children out of detention and home. The 1980 Hague Abduction Convention requires that wrongfully retained children must be returned forthwith to their habitual residence. So, by way of example, if Guatemalan parents have been deported to their home

On June 21, 2018, the Supreme Court of the United States issued a much anticipated decision in South Dakota v. Wayfair, Inc., No. 17-494, which involved a challenge to a South Dakota statute imposing a sales tax collection requirement on Internet retailers who sell merchandise or provide a service in South Dakota, even if the retailer has no physical presence or employees there.  This 5–4 decision has far reaching implications for on-line sales, because it opens the door for any state to

As required by statute and Executive Order, the CPSC published its semi-annual regulatory agenda on June 11, 2018, which summarizes regulatory changes that the CPSC expects to develop or review over the course of the upcoming year.   The June 2018 agenda should be of particular interest to companies involved in the manufacturing, distribution or sale of upholstered furniture, table saws, portable generators and recreational off-road vehicles (ROVs).   More specifically, the agenda highlights the following regulatory issues:   plans to prepare a briefing

Infrastructure investment is part of nearly every government wish list at the local, state and federal level. However, instead of just seeking to finance new infrastructure Washington D.C. has decided to approach the infrastructure issue by first analyzing its current infrastructure, including deferred maintenance. This effort has been viewed favorably by S&P Global Ratings (“S&P”) with a recommendation that other state and local governments conduct the same analysis. The District took a look at infrastructure financing during the development of its

The EU General Data Protection Regulation (GDPR) took effect on May 25, 2018. Potential fines for violating the GDPR include up to 4 percent of an organization's annual profits or €20 million ($23 million), whichever is greater. Despite the risks associated with failing to meet the GDPR standards, many companies are still working towards compliance.   If you are among this group, it is critical to not give up but, rather, to focus on actively continuing efforts to achieve (and maintain)

As instructed by President Trump, the U.S. Trade Representative (“USTR”) has just ordered a 25% ad valorem (according to the value of the article) tariff increase on hundreds of products coming from China. It is an increase, so if the previous tariff on a particular product was 5%, the new tariff will be 30%. The new tariffs are intended to target Chinese products in the aerospace, automobile, IT, communications, robotics, and industrial machine industries (under Harmonized Tariff Schedule of the United States

On June 4, President Trump nominated Peter Feldman as Commissioner of the U.S. Consumer Product Safety Commission. As we previously reported, the recent Senate confirmation of Commissioner Dana Baiocco created a 2-2 split between Democrats and Republicans. If, as expected, Mr. Feldman is confirmed, the Commission will have a Republican majority for the first time in almost 12 years. This will presumably enable Acting Chairman Ann Marie Buerkle to steer the Commission toward policies and practices that reflect her regulatory philosophy.    

Despite last minute veto threats from the White House, the bipartisan Consolidated Appropriations Act of 2018 was signed into law earlier this year. Buried deep in this massive omnibus spending bill is a major win for brownfields revitalization and redevelopment. According to the Environmental Protection Agency (“EPA”), the Brownfields Utilization, Investment, and Local Development Act of 2018 (the “BUILD Act”) provides both efficiency improvements to the administration of the existing program and additional incentives to sustainably redevelop and reuse the estimated 450,000 brownfield sites

During the Obama Administration, the National Labor Relations Board (“NLRB” or “Board”) adopted an aggressive approach to evaluating the legality of – and often striking down – employee handbook policies and rules, to the consternation of employers across the country. These cases involved, what until then, had widely been considered commonplace handbook policies unrelated to activity that is protected under Section 7 of the National Labor Relations Act (“NLRA”), but the Board, applying an expansive interpretation of a case calledLutheran

The United States Senate recently confirmed former Jones Day litigator Dana Baiocco as the newest Commissioner of the Consumer Product Safety Commission. Baiocco replaces former Commissioner Marietta Robinson, and her term runs through October 2024.   As previously reported Baiocco’s original nomination to the Commission was returned by the Senate, along with the nomination of Acting Chairman Ann Marie Buerkle and those of nearly 100 other nominees for various agencies in January of this year, before she was re-nominated by President Trump days

The EU General Data Protection Regulation (GDPR) took effect on May 25, 2018. Potential fines for violating the GDPR include up to 4 percent of an organization's annual profits or €20 million ($23 million), whichever is greater. Despite the risks associated with failing to meet the GDPR standards, many companies are still working towards compliance.   If you are among this group, it is critical to not give up but, rather, to focus on actively continuing efforts to achieve (and maintain)

U.S. Environmental Protection Agency (“EPA”) Administrator Scott Pruitt has made it clear that one of his top priorities during his tenure is to expedite cleanups at contaminated sites across the country. To achieve this goal while facing potential budget cuts, he has made several significant decisions over the last year to overhaul and restructure the Superfund cleanup program fro m within. First, as we discussed in our earlier post, A New Budget, a New EPA Administrator, and New Uncertainty for Superfund Cleanups,

The Consolidated Appropriations Act of 2018, which was signed into law on March 23, 2018, included two provisions affecting the low-income housing tax credit (“LIHTC”) program. One provision temporarily increased the total dollar amount of LIHTC that can be allocated. The other provision added a new minimum set-aside (the “Income Averaging Set-Aside”) that, for the first time, permits units occupied by tenants with incomes greater than 60% of area median income (“AMI”) to qualify as LIHTC units. Although the potential

The Tax Cuts and Jobs Act added a new tax deferral to encourage private corporations to grant more equity awards. If you’re thinking about it, consider whether the juice is worth the squeeze. The Juice One reason private companies don’t grant equity awards is that many employees are unable or unwilling to write a check for the taxes due when shares are issued. Employees with stock options usually prefer waiting until the company is sold or goes public, when their options can be cashed

For over two years, employers and financial institutions (specifically broker-dealers) that managed investments for retirement plans have been dealing with compliance and administration of the Department of Labor (DOL) Fiduciary Rule (the “Fiduciary Rule”), which primarily expanded the definition of “fiduciary” and created new prohibited transaction exemptions under the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code of 1986 (IRC). A more in-depth review of the mechanics of the Fiduciary Rule can be found here and here. The