MSLaw Blog

In 2015, Congress passed the Bipartisan Budget Act that created a new Centralized Partnership Audit regime that is effective for income tax returns filed of partnership taxable years beginning after December 31, 2017. These new changes will impact the ways partnerships structure their partnership agreements and the way they interact with the IRS. I.    Reporting Requirements of Partnerships Generally For federal income tax purposes, a partnership is not a taxable entity. Instead, a partnership is a conduit, and the items of partnership

In Encino Motorcars LLC v. Navarro, 2018 WL 1568026 (Apr. 2, 2018) (“Encino Motorcars II”), the Supreme Court recently concluded that “service advisors” in a car dealership were not entitled to overtime pay under the Fair Labor Standards Act (FLSA) because of a statutory exemption for certain “salesmen” in the auto industry. It was the second time the Court had addressed the case on successive reviews of Ninth Circuit decisions reviving the matter after a California federal district court had originally

This is part 1 of a 3 part series discussing state-level bid protests in the DMV.      For a contractor who just expended significant time and money to bid on a DMV state-level government contract, only to watch the award go elsewhere, disappointment is understandable. But, what if the contractor believes that the state agency got it wrong?  How can the contractor challenge the award? The answer is that the contractor can file a state-level bid protest to challenge the procurement result

Online retail giant Amazon recently shortened the list of potential locations for its future second corporate headquarters, referred to as Amazon’s “HQ2”, to twenty locations around the country. Three of those 20 locations for the potential new HQ2 site are located in the Maryland, District of Columbia and northern Virginia region. Regions that made the “short list” for the potential future HQ2 are all anxious to have Amazon select their area for the future HQ2 site, which Amazon estimates will

Last month, with its decision in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018) the Sixth Circuit broadened Title VII protection to include protection for individuals who are transgender or transitioning. The Court did not mince words, holding without question that “discrimination on the basis of transgender and transitioning status violates Title VII.” Harris Funeral Homes follows a recent Second Circuit decision holding that sexual orientation is protected under Title VII, which was reported previously on this blog. The

For a U.S. business enterprise that has or recently had 10% foreign ownership, May 31, 2018 is an important filing date. That Thursday is the general reporting deadline for submitting to the U.S. Department of Commerce, Bureau of Economic Analysis (“BEA”), a mandatory survey (Form BE-12) which details the extent of foreign investment in a U.S. business, or U.S. affiliate/division of a foreign business. This “benchmark” survey occurs every five years. Many U.S. companies do not know or have forgotten about

The corporate rate reductions included in the Tax Cuts and Jobs Act decreased the value of the Low-Income Housing Tax Credit (“LIHTC”) projects because a significant portion of an investor’s return is composed of federal income tax losses. In an effort to restore a portion of the lost value, the Consolidated Appropriations Act, 2018 (the “Act”) included two improvements to the LIHTC program that would (1) increase the amount of LIHTC allocations and (2) create a new minimum set aside test that

On April 3, 2018, in preparation for the discontinuation of the London Interbank Offered Rate (LIBOR; for background on the discontinuation of LIBOR, see our prior blog post), the Federal Reserve Bank of New York (“Reserve Bank”) began publishing three new reference rates. The three new rates are the Secured Overnight Financing Rate (SOFR), the Broad General Collection Rate (BGCR), and the Tri-Party General Collateral Rate (TGCR). The new reference rates, which are based on overnight repurchase agreement (repo) transactions collateralized

Electronic filing of bid protests and the $350 filing fee are finally here. On Monday, April 2, 2018, the U.S. Government Accountability Office (GAO) published a final rule implementing two key changes to the bid protest process that have been anticipated for several months. First, mandatory electronic filing of protests through the new Electronic Protest Docketing System (EPDS) is effective May 1, 2018. Second, as part of implementing EPDS, GAO is implementing a mandatory $350 filing fee to pay for the costs of

Enhanced debriefings are finally here.  On March 22, 2018, Shay Assad, the DoD Director of Defense Procurement and Acquisition Policy, issued a DoD-wide policy directive that, effective immediately, DoD is offering “enhanced postaward debriefings” to unsuccessful offerors.  Def. Acquisition Reg. Sys. Memo. No. 2018-O0011 (Mar. 22, 2018).  Mr. Assad’s policy directive, issued as a class deviation to the Federal Acquisition Regulation, gives practical effect to Section 818 of the National Defense Authorization Act for Fiscal Year 2018.  Accordingly, an unsuccessful offeror to

The U.S. Department of Homeland Security’s Office of the Inspector General (OIG) released a report on March 9, 2018 entitled: “USCIS Has Unclear Website Information and Unrealistic Time Goals for Adjudication Green Card Applications.” While this is not surprising news to those of us who practice in this field, the report highlights a significant problem with the processing time information that the USCIS disseminates to the public.   What Processing Time Information Does the USCIS Publish? The USCIS regularly posts data on

Is Maryland drifting toward Daubert? The Court of Special Appeals of Maryland seemed to confirm (or re-confirm) this as recently as in Sissoko v. State. There, the Court of Special Appeals determined that the trial court properly admitted expert testimony from prosecutors about abusive head trauma in infants.   A quick refresher on Daubert: under Federal Rule of Evidence 702, a court will look at the following factors to determine whether scientific testimony (i.e., both methodology and conclusions) is reliable: (1) whether the technique has been

The DLLR recently issued new guidance concerning the Maryland Healthy Working Families Act for employers. The new guidance takes the form of sample policies and updated or new responses to the previously posted frequently asked questions. The new guidance is helpful and may answer some of the questions employers face as they implement the Act. The new guidance may be found here. The sample policies address three different scenarios: (i) an employer that awards sick and safe leave at the beginning of

The Maryland General Assembly is currently considering House Bill 1390 (“HB1390”). As introduced, HB 1390 will materially impact the utility of the Development Rights and Responsibility Agreement (“DRRA”) for land owners, developers and local jurisdictions.    In a three part blog series that included “Development Rights and Responsibility Agreements: The Give and Take of Development”; “Two Recent Maryland Rulings on Development Rights and Responsibility Agreements”; and “A New Maryland Ruling on Development Rights and Responsibility Agreements – Score Another Round for

On Friday, February 23, 2018, the Texas Supreme Court 1 overturned a lower court’s ruling that attorney-client privilege does not extend to patent agents. The ruling, bound to reverberate throughout the intellectual property industry, may bring relief to entities utilizing patent agents.   At issue was whether patent agents can assert attorney-client privilege to protect their communications with clients made in the context of patent prosecution. The issue arose in a dispute between inventor Andrew Silver and Tabletop Media LLC, which markets a

Federal regulations prohibit “related entities” from filing more than one H-1B petition on behalf of a foreign national unless there is a legitimate business need to do so.  This rule is designed to prevent H-1B petitioners from seeking to exploit the random H-1B lottery system by filing multiple petitions in an effort to increase the chance of having one selected in the annual lottery.   The applicable regulations do not define the term “related entities” other than by example, stating in

With its en banc decision on February 26, 2018 in Melissa Zarda v. Altitude Express, Inc., No. 15‐3775 (2d Cir. Feb. 26, 2018), the Second Circuit Court of Appeals became the second federal appeals court to hold that sexual orientation discrimination is prohibited sex discrimination under Title VII of the federal Civil Rights Act of 1964, which expressly prohibits discrimination based on sex, but not sexual orientation. Last year in Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. Apr. 4, 2017), the

On February 23, 2018, the Miles & Stockbridge Labor, Employment, Benefits & Immigration practice group presented its annual Hot Topics in Employment Law seminar to an audience of nearly three hundred clients and members of the Baltimore business community. The topics covered throughout the seminar included sexual harassment in the #MeToo era, drugs and alcohol abuse in the workplace, and the 2017 year in review. Here are the highlights: Sexual Harassment in the #MeToo Era A 2016 Equal Employment Opportunity Commission (“EEOC”)

Anyone with a social media account has likely recently seen a friend start a side-hustle selling products to their network through a direct sales company. The direct sales industry has experienced a renaissance since the Great Recession and shows no sign of slowing down. Direct sales companies have changed the way many people buy and sell products, and they have allowed many sellers to engage in potentially lucrative work with great flexibility. But are these sellers opening themselves up to

During the brief period in late 2017 when there was a 3-2 Republican majority on the National Labor Relations Board, the Board issued a few decisions undoing some of the most union- or employee-friendly decisions of the Obama-era NLRB. One of those decisions was Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017), in which the Board overruled the Obama Board’s dramatic expansion of the standard for joint employer status. In Browning-Ferris Industries, 362 NLRB No. 186 (2015), the Democrat-majority NLRB under President

U.S. Citizenship and Immigration Services (USCIS) announced that it will accept credit card payments at no additional cost for the USCIS filing fees associated with filing most of its forms. The credit card payment option is now available for 41 fee-based forms processed at USCIS Lockbox facilities, including commonly used forms such as Form I-140 (an employment-based immigrant petition), Form I-130 (a family-based immigrant petition), Form I-129F (a fiancé visa petition), and Form I-485 (an application for adjustment of status).

In a case of first impression in Maryland, the Court of Appeals of Maryland recently held in Waterman Family Limited Partnership v. Boomer, 456 Md. 330, 173 A.3d 1069 (2017) that a newly elected Board of County Commissioners (“BCC”) has the common-law authority to rescind the decision of an outgoing BCC’s approval of a rezoning project. The case arose out of the Town of Queenstown (the “Town”) in Queen Anne’s County (the “County”), on the eastern shore of Maryland when the Waterman

Companies regulated by the Environmental Protection Agency (EPA) have long complained that EPA too often uses guidance documents improperly, both to expand regulatory requirements beyond what the law permits and to avoid judicial review of such expansions. Moreover, regulated parties often argue that EPA rigidly enforces such guidance as binding federal rules, but ignores such guidance when it likes. Without expressly referencing EPA, the Department of Justice (DOJ) has now taken action that will make it harder for such alleged

The U.S. Department of the Treasury’s Bureau of the Fiscal Service (the “Treasury”) announced on February 9, 2018, that the Treasury is resuming the sale of State and Local Government Series (SLGS) nonmarketable Treasury securities, effective February 12, 2018, at 12 p.m. ET. As discussed in our December 7, 2017, alert, the Treasury suspended the sales of SLGS on December 6, 2017. The suspension was necessary to assist with Treasury's management of the debt subject to limit. On February 9, 2018, President Trump signed

Property Assessed Clean Energy (PACE) financings are an alternative financing tool used to finance energy efficiency upgrades or renewable energy projects in residential, commercial and industrial properties. PACE financings allow for the payment of the costs of the energy project over time which is tied to the property, and not to the property owner.   In a December 7, 2017 letter, the U.S. Department of Housing and Urban Development (“HUD”) stated that the Federal Housing Administration (“FHA”) would no longer insure

Employers are abuzz about the upcoming start of the Maryland Healthy Working Families Act, which goes into effect this Sunday, February 11, 2018.  Contrary to some local news reports, efforts to delay this bill have not yet been successful and will still be an uphill battle.   As readers may recall, House Democrats recently won a six-year battle for paid sick leave, which ended with an override of Governor Hogan’s veto. As we reported to you last month, the Maryland General Assembly

A “seriously delinquent tax debt” will affect the ability of a U.S. citizen to use, or apply for, a passport. Section 7345 of the Internal Revenue Code (“IRC”) permits the Secretary of State to deny, revoke or limit a citizen’s passport upon receipt of a certification from the Commissioner of Internal Revenue Service (“IRS”) that the citizen has a seriously delinquent tax debt. Though IRC §7345 was enacted in 2015, the IRS and State Department began implementing these rules in January

In October 2017, the United States Senate voted to invalidate a rule promulgated by the Consumer Financial Protection Bureau (“CFPB”), which would have prohibited financial institutions from using arbitration agreements in which the consumer waives the right to participate in a class action. The rule—which was announced by the CFPB in July 2017 and was not yet in effect at the time it was invalidated—prohibited class action waivers imbedded in consumer arbitration agreements (the “Arbitration Rule”). If the Arbitration Rule

On December 1, 2017, the Court of Appeals of Maryland heard arguments on an appeal from a decision holding that the state’s 20-year statute of repose bars asbestos claims that accrue after the enactment of the asbestos manufacturer exemption of 1991. Duffy v. CBS Corp., 232 Md. App. 602, cert. granted, 456 Md. 53 (2017).   The statute of repose limits liability for injuries which occur from “the defective and unsafe condition of an improvement to real property.”  MD. CODE ANN., CTS.

As a matter of first impression, the Pennsylvania Superior Court recently held that the Fair Share Act applies to strict liability cases involving asbestos exposure. In Roverano v. John Crane, Inc., 2017 PA Super. 415 (Dec. 28, 2017), a three-judge panel concluded that “the Fair Share Act explicitly applies to tort cases in which recovery is allowed against more than one person, including actions for strict liability.” Ultimately, the Superior Court vacated the trial court’s judgment and remanded the case for

By now, most government contractors with DoD contracts are at least aware that there is a DFARS clause requiring compliance with new cyber requirements by no later than December 31, 2017. These DFARS cyber requirements are mandatory for all DoD solicitations (DFARS 252.204-7008) and contracts (DFARS 252.204-7012) other than those solely for the acquisition of COTS items. Even the largest defense contractors have expressed concerns about how they will fully comply with these requirements, and how compliance will be enforced,

There has been a lot of talk in the news about the new tax law known as the Tax Cuts and Jobs Act of 2017, that was passed by Congress and signed into law in late December 2017. While most of the focus of the tax law was regarding the change in corporate and individual tax rates, it also included a new tax credit for employers who provide paid family and medical leave. Employers who wish to take advantage of

Congress’s use of stopgap measures – Continuing Resolutions – to fund the Government create the potential for shutdown of the Government if a Continuing Resolution expires without another funding measure in place. When the Government shuts down, the Government offices which rely upon appropriated funds execute their “orderly” shutdown plans, and the affected Government employees who are not considered excepted (a.k.a. “essential”) will be furloughed. To prepare for such a shutdown, Contractors should take action (before contracting officers leave for

It all started with good intentions. On May 10, 2016, Maryland approved the Contraceptive Equity Act. One purpose of the act is to require Maryland’s health insurers to cover vasectomies without charging deductibles, effective January 1, 2018. Sounds unobjectionable enough, right? Here’s the problem: requiring free vasectomies conflicts with the federal tax requirements of a health savings account (HSA). An HSA (offered in tandem with a high deductible health plan) must have minimum deductibles for coverage, other than preventive care. And there’s a list of what counts as preventive

More and more employers are seeking employees on the internet through targeted advertisements on Facebook. Employers can target these advertisements to certain users based on age, location, interests, experience, among other things, and the advertisements will only be sent to those users that fit the qualifications. Arguably these targeted advertisements help employers to get the advertisements to those potential candidates who will be most interested in or qualified for the job. However, older workers recently have argued that these targeted

Last week, we reported that the General Assembly had overridden Governor Hogan’s veto of the Maryland Healthy Working Families Act, and that employers in Maryland would be required to provide paid sick leave as soon as February 11, 2018. An emergency bill was introduced yesterday to delay the implementation of that Act for 60 days, which would give employers some breathing room to revise and implement their policies. Senate President Mike Miller had previously indicated a willingness to consider a

Highlights: Research study refutes concerns that bid protests delay DoD procurements and debunks other common myths. Congress enacts legislation requiring better debriefings and providing for “loser pays” pilot program. Over the past few years, critics of the bid protest system have claimed that too many frivolous protests inflict unnecessary and costly delays upon acquisitions by the Department of Defense (DoD). As one consequence of these criticisms, the National Defense Authorization Act (NDAA) for Fiscal Year 2017 commissioned a study of the bid protest

H.R. 1, originally known as the “Tax Cuts and Jobs Act,” makes certain changes to mortgage interest and property interest deductions. These changes will affect taxpayers who own real property, including homeowners and companies that own their business properties. Mortgage Interest Deduction Current law provides that “qualified residence interest” is generally allowed as an itemized deduction. Qualified residence interest includes interest paid or accrued on debt incurred in acquiring, constructing, or substantially improving a taxpayer’s residence (“acquisition indebtedness”) and home equity indebtedness.

As employers prepare to send employees their W-2s for last year by the end of the month, cybercriminals are preparing phishing emails under the guise of company executives requesting personal information on employees. The IRS has warned payroll and human resources professionals of the surge in these schemes particularly during the tax season when companies’ guards may be down and such requests may not appear out of the ordinary. These hackers have become more sophisticated in their schemes by researching the names of company

Last year, we reported that Governor Hogan had vetoed legislation that would have required most employers in Maryland to provide paid sick leave.  In one of its first actions in 2018, the General Assembly overrode the Governor’s veto of House Bill 1 (the “Act”) on January 12, 2018.  The law will now go into effect on February 11, 2018, per legislative guidelines.  While the Maryland Chamber of Commerce and others plan to seek an extension of the time for implementation, employers

The Maryland Court of Appeals recently heard and decided a case involving Development Rights and Responsibility Agreements.  In my first blog post on this topic, “Development Rights and Responsibility Agreements: The Give and Take of Development.” I discussed the purposes of and requirements for a Development Rights and Responsibility Agreement (“DRRA”) between a land developer and the local government having jurisdiction over the property. In my subsequent blog post, “Two Recent Maryland Rulings on Development Rights and Responsibility Agreements.” I discussed two decisions by

President Trump wasted no time in re-nominating CPSC Acting Chairman Ann Marie Buerkle for permanent Chairman and for a second term as Commissioner of the agency. Dana Baiocco was also re-nominated for Commissioner. As we recently reported, the Senate returned these nominations to the White House on January 3, 2018, along with those of almost 100 others who had been nominated for various agencies, departments and judgeships. A mere five days later, the White House announced the re-nomination of most of these candidates. Although

U.S. Environmental Protection Agency (EPA) Administrator Scott Pruitt says that expediting cleanups at Superfund sites is one of his top priorities. Since 1980, EPA has had the authority to clean up contaminated sites and force parties responsible for the contamination to either perform cleanups or reimburse the government for EPA-led cleanup work through the Superfund program, also known as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).   According to EPA’s website, as of November 2017, 1,736 sites have been placed

Amid the uncertainty plaguing brick and mortar retail establishments, some commercial landlords may find themselves with an extra tool in their arsenals to temporarily stave off tenant vacancies: continuous operations clauses. Conversely, these same clauses may force some commercial tenants to incur operational losses. Continuous operations clauses are covenants commonly found in commercial leases that compel tenants to operate efficiently and profitably by requiring them to conduct regular business at all times during the lease term. Some continuous operations clauses

On January 8, 2018, Senators John Cornyn (R., Texas) and Elizabeth Warren (D., Massachusetts) introduced a bill that, if passed, would require companies to file for relief under the bankruptcy code in a court near its principal place of business or where the principal assets of the company are located. See Senate Bill 2282. The proposed legislation removes language currently contained in 28 U.S.C. § 1408 that permits companies to file for bankruptcy where they are incorporated or where smaller affiliates operate. See 28

On October 3, 2017, the United States Court of Appeals for the Third Circuit held—in a case of first impression—that a manufacturer of a “bare metal” product may be liable for a plaintiff’s injuries caused by later added asbestos-containing materials. Roberta G. Devries and Shirley McAfee were widows of husbands who served in the United States Navy. Each filed a Complaint against a group of manufacturers alleging that their husband contracted cancer as a result of asbestos exposure. Devries alleged that

As previously reported here, Acting Chairman Ann Marie Buerkle has been awaiting U.S. Senate confirmation as permanent Chairman of the CPSC, and Jones Day litigator Dana Baiocco has been awaiting confirmation as the replacement for Commissioner Marietta Robinson. However, a degree of uncertainty has now arisen because last week the Senate returned these nominations to President Trump.   While ordinarily the Senate will hold over a pending nomination to the new Congress, such a nomination will be returned if a senator objects,

On March 7, 2017 and June 27, 2017, respectively, the Montgomery County Council enacted Bills 42-16 and 13-17 to provide a property tax credit for elderly individuals and retired veterans. Individuals eligible to receive the tax credit are either: (i) individuals sixty-five years old or older (birthday on or before June 30, 1953) who have lived in the same dwelling in Montgomery County, which is assessed for no more than Six Hundred and Fifty Thousand Dollars, for at least forty

As mentioned in our last blog post, H-1B petitions filed during 2017 were subjected to a dramatic and unprecedented increase in scrutiny by the U.S. Citizenship and Immigration Service (“USCIS”). As a result, thousands of H-1B petitions that previously would have been routinely approved were subjected to sometimes lengthy and nearly always burdensome USCIS Requests for Evidence (commonly called “RFEs”). Issues raised by the USCIS in these RFEs have included: Is the position a specialty occupation, meaning one that requires a degree

As 2017 and Chairman Phillip Miscimarra’s term drew to an end, the National Labor Relations Board (“NLRB” or “Board”) issued a flurry of decisions overturning several Obama-era NLRB decisions. Because Board members are appointed by the President, the political make-up of the Board (5 members), and its overall view of employer-employee-union behavior, changes on a fairly regular basis. However, the scope of the recent decisions is unusually broad and has resulted in many labor practitioners telling their clients, “Remember when