MSLaw Blog

In a Policy Memorandum issued on May 10, 2018 (USCIS Policy Memorandum), the U.S. Citizenship and Immigration Service (“USCIS”) proposed a substantial change in the manner in which it will calculate periods of unlawful presence for foreign students and scholars in F, J, and M nonimmigrant visa status. As a result, foreign students and scholars need to be more careful than ever to comply with all rules and regulations governing the maintenance of their status in the U.S. to avoid

On April 13, 2018, the United States Court of Appeals for the Federal Circuit issued a decision in Vanda Pharmaceuticals Inc. v. West-Ward Pharmaceuticals Int’l Ltd  upholding the validity of U.S. Patent 8,586,610 (“the ’610 patent”), which claims a method of personalized treatment for schizophrenia. The Federal Circuit further affirmed the district court’s finding of infringement and awarding of injunctive relief that will exclude a generic version of Fanapt® in various strengths for treating schizophrenia from the market until the ’610

The “Opportunity Zone Program” (“OZP”) was enacted as part of the Tax Cuts and Jobs Act of 2017 and is the first new economic development tax incentive program since the New Markets Tax Credits Program was enacted in 2000. OZP is designed to provide a federal tax incentive for investors to reinvest capital gains generated in 2018 into economically distressed areas. The incentive is two-fold: first the deferral, until December 31, 2026, of taxation of the amount of capital gain

For a U.S. person or business that sold to, or bought from, a foreign business or person $500 or more in certain services or intellectual property (“IP”) during the U.S. entity’s fiscal year ending in 2017, June 29, 2018 is the general filing deadline for submitting to the U.S. Department of Commerce, Bureau of Economic Analysis (“BEA”), a mandatory economics survey (Form BE-120). The Form BE-120 is a once-every-five-years survey conducted by BEA, titled “Benchmark Survey of Transactions in Selected

UPDATE:  Effective May 25, 2018, the SBA updated its regulations in an apparent attempt to invalidate the holding in Analytic Strategies. However, because the SBA termed this update a “technical correction,” which is a designation reserved for non-substantive matters, and because the update might not address the entirety of the holding in Analytic Strategies, it is not clear whether the update will result in the case being overturned. Nonetheless, the law in this area has once again returned to a state of uncertainty. It

On April 11, 2018, the Internal Revenue Service published Revenue Procedure 2018-26 (“Rev. Proc. 2018-26”), providing new guidance to issuers on the availability of remedial actions to preserve the status of tax advantaged bonds to cure nonqualified use of bond proceeds. Prior to the issuance of the new Revenue Procedure, the only remedial action available in connection with certain long-term private leases financed with tax-exempt bonds was a redemption or defeasance of the bonds. Now, however, the expansion of the remedial action rules

On March 30, 2018, the U.S. Department of State (DOS) published notices in the Federal Register seeking public comment on its proposal to amend Forms DS-260 and DS-160, which are the forms that must be completed by all immigrant and nonimmigrant visa applicants. The proposed amendments include adding questions that would require the disclosure of the visa applicant’s “identifiers” on a variety of social media platforms over the five year period prior to the completion of the application form. While the DOS

In our previous two posts, addressing bid protests in D.C. and Maryland, we provided the reader with a survey of the authorities and relevant protest procedures for procuring agencies in those jurisdictions. Those articles can be found here and here. To recap, Maryland can be characterized as having a predominantly centralized procurement system, with most purchasing authority being delegated by its Governor-led Board of Public Works, and many protest roads leading to the Maryland State Board of Contract Appeals.   D.C. is somewhat less centralized.

Miles & Stockbridge lawyer Sufen Zhang covers steps employers can take to prepare for a potential enforcement action by U.S. Immigration and Customs Enforcement. The following was published in an alert created by TerraLex, a worldwide network of law firms in which Miles & Stockbridge is the Maryland member firm. What are 3-5 critical action steps employers should take in order to ensure compliance with the US Federal Government in the event of a raid by ICE? In light of the government’s

For the second post in our three part series regarding state-level bid protests in the DMV, we turn our attention to the District of Columbia. In our first post we discussed the authorities and procedures for Maryland procurement protests. That article can be found at this link.   As should be apparent by the end of this series, D.C.’s bid protest process has many features that distinguish it from the Maryland and Virginia protest regimes. For example, whereas the procuring agency itself

The Maryland General Assembly passed legislation in the final days of the 2018 session that was aimed at addressing some of the issues brought to light by the #MeToo movement. The Disclosing Sexual Harassment in the Workplace Act of 2018 (“Act”) addresses two different but related areas. The Act has not yet been signed by Governor Hogan, however, the Act passed unanimously in the Senate and by a margin of 136-1 in the House so the chance of a veto is very

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