MSLaw Blog

On March 9, 2021, the United States District Court, Northern District of California issued a ruling in Handloser v. HCL Technologies Ltd., 19-cv-01242-LKH, 2021 WL 879802 (Mar. 9, 2021), applying the 2011 Supreme Court standard established in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011), for individuals to properly assert a Rule 23 class for Title VII of the Civil Rights Act of 1964 discrimination claims. The named plaintiffs filed their complaint against HCL Technologies Ltd., an Indian consulting

The Supreme Court’s latest personal jurisdiction opinion – Ford Motor Co. v. Montana Eighth Judicial District Court – seems to raise more questions than answers regarding the contours of specific jurisdiction. A curious result, given the eight-member panel 1 unanimously agreed that Ford was subject to specific jurisdiction in the forums – Montana and Minnesota – where the underlying suits were filed. Writing for the five-member majority, Justice Kagan reached this conclusion by recognizing that specific jurisdiction may exist where a defendant’s

Under the American Rescue Plan Act of 2021 (ARPA), which was passed by Congress on March 11, 2021, the cost of health insurance coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) is fully subsidized from April 1, 2021 until September 30, 2021 for individuals who lost their health coverage due to an involuntarily termination or a reduction in hours. The ARPA requires employers to notify eligible individuals about the new COBRA subsidy by May 31, 2021.

One of the best-known features of bankruptcy law is the automatic stay, which prevents a variety of actions to collect debts and to take possession or control of anything considered “property of the estate.” However, one thing that may not be considered property of the bankruptcy estate is the S-corporation (“S-corp”) status of a corporate debtor. Although at least two Bankruptcy Appellate Panels have found that the S-corp status of a debtor is property of the bankruptcy estate, the Third

The Office of Inspector General (OIG) and the Centers for Medicare & Medicaid Services (CMS) jointly published final rules that expand upon and modify regulatory safe harbors and exceptions to the Anti-Kickback Statute and the Ethics in Patient Referrals Act (the Stark law), respectively. This article will address each rule and focus on the exceptions and safe harbors applicable to value-based arrangements. Stark Law Final Rule: Value-Based Arrangements The Stark law prohibits physicians from referring patients to receive certain designated health services

In my last post, “Real Estate Alphabet Soup: W is for Warranties” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter X. I knew when I started to stir up this “alphabet soup” that the letter X would prove to be a challenging ingredient to mix into the soup. And now that I have reached this step in the recipe, that challenge still stands, but I’ll do my

In March, we reported on a new law enacted in New York at the end of last year, Senate Bill 5470-B that imposes certain Truth-in-Lending Act modeled disclosure obligations on those making or brokering certain commercial loans of $500,000 or less. We also reported on the existing New York Licensed Lenders Law that imposes a licensing obligation to make commercial loans of $50,000 or less with an annual interest rate in excess of 16 percent. We further indicated that we

As various COVID-19 vaccines become more readily available, employers continue to struggle to address issues relating to the impact of a vaccine on their workplaces.  Real legal and practical risks remain for unwary employers.  In recent surveys, only a small percentage of employers are currently planning to mandate a vaccine for employees to return to work; a much higher percentage intend to encourage or incentivize vaccination; but many are still working on their plan.  This four-part blog post addresses some

The Small Business Restructuring Act of 2019, Pub. L. 116-54, 133 Stat. 1079 (Aug. 23, 2019) (“SBRA”) became effective February 19, 2020.  SBRA, among other things, created a new Subchapter V under Chapter 11 of Title 11 of the United States Code, designed to provide business debtors a more streamlined bankruptcy process for reorganization.  The streamlined process was expected to reduce the time and expense of small business reorganizations when compared to the current Chapter 11 process.  Subchapter V is

The question of whether a state mortgage finance licensing obligation arises to acquire and hold mortgage loans or mortgage loan servicing rights has often generated confusion and raised questions among mortgage finance companies buying residential mortgage loans or mortgage servicing rights. Such uncertainty as to whether a state’s mortgage lender or servicer law applies to license such activities is also shared by certain state regulators. Based on our analysis, few state mortgage finance licensing laws expressly extend the licensing obligation to purchase,

On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 (ARPA, or the “Act”), which created certain additional benefits for employees about which employers should be aware. Extension of FFRCA Credits The Families First Coronavirus Response Act (FFCRA), originally passed into law on March 14, 2020, required companies with fewer than 500 employees to provide paid leave to employees who were unable to come to work for a number of COVID-19 related reasons. Employers were then entitled to

The American Rescue Plan Act of 2021, signed on March 11, 2021, requires employers to fully subsidize COBRA for certain eligible individuals. Eligible individuals consist of employees and their spouses and dependents who lost coverage in November 2019 or later due to the employee’s involuntary termination of employment (other than for gross misconduct) or reduction of hours. No subsidy is required for employees who voluntarily terminate employment or those who become eligible for Medicare or other employer’s group health plan. Employers

On March 12, 2021, the Occupational Safety and Health Administration issued a National Emphasis Program (“NEP”), signaling a renewed focus on COVID-19 under the Biden Administration. A NEP is a temporary program that focuses OSHA's resources on particular hazards and high-hazard industries based on an evaluation of inspection data, injury and illness data, National Institute for Occupational Safety and Health (NIOSH) reports, peer-reviewed literature, inspection findings, and other available information sources. The recently issued NEP is viewed as a response to

On March 9, 2021, the House of Representatives passed the PRO Act by a vote of 225 – 206. It now heads to the Senate. The Act’s fate in the Senate is uncertain; however, President Biden has voiced his support for the bill. The PRO Act, if passed, would make sweeping changes to the National Labor Relations Act (NLRA) and tilt the playing field decidedly in favor of organized labor. One area of significant change is with regard to the coverage

To date, the licensing and disclosure obligations for lenders and brokers of commercial loans, (including commercial mortgage loans and non-real estate-secured commercial or business purpose loans) have not received the attention of most state legislators or regulators. Few states impose a licensing obligation to make any type of commercial loans1 and there are no state laws that impose significant disclosure obligations to make commercial loans but that may be changing in 2021. As California and New York lead the way

Earlier this week, the Center for Medicare & Medicaid Services (CMS) revised its previous guidance concerning nursing home visits, and—in much welcome news to residents and their loved ones—is instructing nursing homes to allow indoor visits effective March 10, 2021. Because the population of nursing homes is particularly at risk for COVID-19 infection, CMS first severely restricted visits in long-term care settings on March 13, 2020, in the early stages of this pandemic. In guidance released in September 2020, CMS updated its

China employs its Thousand Talents Program (“TTP”) to recruit overseas academic and scientific talent to work in China by promising research funding from the Chinese government and, occasionally, compensation. TTP has drawn increased scrutiny from the U.S. government, specifically the FBI and the Department of Justice, over purported concerns of intellectual property theft or espionage. However, a closer review of the actual charges brought to date by these government agencies reveals the crux of the matter has related to disclosures.

In my last post, “Real Estate Alphabet Soup: V is for Variance” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter W.” W is for “Warranties”. A “warranty” is an assurance by one party in a transaction to the other party of the existence of a fact upon which the other party may rely. The “warranty” is intended as a promise that certain matters are true. If a

In response to the many disruptions caused by the COVID-19 pandemic many states have made accommodations for certain licensing requirements across various industries. Last month, in our blog post “Relief from Branch Office Licensing,” we generally reported on the actions taken by many state mortgage finance regulators to temporarily allow licensed mortgage companies and their licensed mortgage loans originators (MLOs) to originate residential mortgage loans from the MLO’s unlicensed home or some other remote unlicensed location. To provide that guidance,

The temporary shutdowns in response to the pandemic dealt a major blow to businesses as well as their employees. Since last March, many employers have been forced to shutter their businesses and lay off their workforce. One of the hardest hit sectors has been the coronavirus-sensitive leisure and hospitality industry. The industry alone accounts for 39% of all jobs lost to the pandemic. With the introduction of a vaccine and government restrictions loosening up, businesses are starting to reopen, and

Last year, when COVID-19 first hit the country nationwide, many state regulators were quick to act, and temporarily allowed licensed companies and their licensed mortgage loan originators (“MLOs”) to originate residential mortgage loans from their home or another alternate location without the home or the alternate location being licensed as a branch office of the licensed company. During the past year, vaccines have been developed and approved to combat COVID-19. Although the vaccines are working, getting everyone vaccinated is taking time,

Since the beginning of the COVID-19 situation, Americans have rethought day-to-day tasks that were common before the pandemic. In the same nature, the United States Internal Revenue Service (“IRS”) recently issued a temporary deviation permitting taxpayers and representatives to use electronic or digital signatures when signing select IRS forms that once required a handwritten signature (the “Deviation”). Specifically, IRS Form 8038 (“Form 8038”) is among the list of forms that the Deviation applies to. Issuers of tax-exempt private activity bonds use

On December 27, 2020, the Taxpayer Certainty and Disaster Tax Relief Act of 2020 (TCDTR Act) amended the employee retention credit (ERC) provisions of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). Among other changes, the ERC is now available from January 1, 2021 through June 30, 2021. Below is a description of the ERC available under the CARES Act and a list of the modifications now in place under the TCDTR Act. ERC under the CARES Act The ERC

The first two weeks of the Biden Administration have seen a flurry of activity indicating it will move away from the more restrictive immigration environment of the Trump era, including for employment-based immigration programs. This post summarizes some of the early actions the Biden Administration has taken. Regulatory Freeze The Biden Administration instituted a freeze on all pending and proposed regulations for a 60-day period of review. In its last several months, the Trump Administration had issued or proposed a series of

Maximizing the use of goods, products, and materials produced in the United States under the Buy American Act (BAA) is a bipartisan issue. In our previous post, “Ensuring the Future is Made in All of America by All of America’s Workers” (located here) we wrote about Executive Order 14005, signed by President Biden on January 25, 2021.  Among other things, EO 14005 directs the Federal Acquisition Regulatory Council (FAR Council) to consider proposing a rule that increases the thresholds for

In my last post, “Real Estate Alphabet Soup: U Is for Unities,” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “V.” V is for “variance.” In the realm of real estate and, more specifically, zoning law, a “variance” is an exemption from the application of certain zoning ordinances or regulations, thereby permitting a use which varies from the regulations otherwise permitted under the zoning ordinance. A “variance” may

On January 25, 2021, President Biden issued an Executive Order on Ensuring the Future Is Made in All of America by All of America’s Workers. The order is part of his “Build Back Better Recovery Plan” to strengthen American manufacturing and has potentially far-reaching effect. The order will tighten the federal government’s requirements to buy American products, support American jobs and rationalize the enforcement of the country’s patchwork of “Made in America” laws. Companies that supply goods and services to the

As discussed in our blog “Virginia Takes the Lead in Adopting Workplace Safety Regulations for COVID-19,” in July 2020, Virginia became the first state to enact a temporary COVID-19 emergency workplace rule set to expire on January 27, 2021. The Virginia Safety and Health Codes Board approved a permanent rule on January 13, 2021, that will essentially make the temporary rule permanent, with some changes. The permanent rule must be reviewed by Governor Northam and, if no revisions are requested

The O-1A is a nonimmigrant classification that allows employers and agents to temporarily employ individuals who have “extraordinary ability” in the areas of science, education, business, or athletics in the United States. It initially allows up to three years of employment in the US, and it can be extended in one year terms. The category is reserved for those who have “sustained national or international acclaim and recognition” and are acknowledged as “one of the small percentage who have arisen to

On January 8, 2021, the Department of Homeland Security (“DHS”) published a final rule that would dramatically change how H-1B cap petitions are selected in the annual “lottery.” Under this final rule, the current random selection process would be replaced with a system that gives priority to workers whose offered salary is in the highest wage levels for their occupation and geographic location. The new rule will go into effect 60 days after publication—March 9, 2021—and U.S. Citizenship and Immigration

On January 6, 2021, the office of the Maryland Comptroller announced extended filing and payment deadlines for certain Maryland business taxes and quarterly estimated income tax returns and payments. The extension will allow certain business taxes and estimated income tax returns and payments that would be due in January, February and March 2021 to be deferred until April 15, 2021. The action is similar to an extension granted last year to businesses during the early stages of the COVID-19 pandemic.

In response to 2020’s continued accounts of brutality and discrimination against Black people, and the corresponding wave of demands for accountability and racial justice, organizations across the country began implementing additional measures aimed at achieving equity in the workplace. In line with these initiatives, many organizations opted to provide various forms of diversity, equity, and inclusion training for their employees. These trainings often cover topics including unconscious bias, systemic racism, and white privilege. Trump’s Executive Order Seemingly in an effort to taper

On December 27, 2020, the Consolidated Appropriations Act, 2021 (the “Appropriations Act”), was signed into law following weeks of negotiations by members of Congress and Executive branch officials. The Appropriations Act combines an omnibus spending bill for the 2021 federal fiscal year with $900 billion in stimulus relief due to the ongoing effects of the COVID-19 pandemic in the United States. Division N, Title III, of the Appropriations Act is the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues

On January 1, 2021, the National Defense Authorization Act became law after Congress overrode the President’s veto. As highlighted below, Congress enacted a variety of key provisions that create significant and sweeping reforms to statutes and regulations designed to combat money laundering and terrorism financing. 1. Requiring Entities to Report “Beneficial Ownership” Congress determined that “malign actors” and “money launderers” conduct financial transactions through corporate structures that conceal their identities “much like Russian nesting ‘Matryoshka’ dolls.” In order to pierce these facades,

The Consolidated Appropriations Act of 2021 (CAA) was signed into law on December 27, 2020, after receiving overwhelming bipartisan support. The Act, in addition to providing appropriations for various government departments, as well as coronavirus stimulus, made a number of changes to the Bankruptcy Code (Title 11 of the United States Code). Landlords of commercial properties should be aware of certain changes directly impacting their rights under the Bankruptcy Code. The amendments addressed below, however, are temporary and, absent further

In my last post, “Real Estate Alphabet Soup: T Is for Tenancy” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “U.” U is for “Unities”. Under the common law there are four “unities” that are required in order to create certain forms of tenancy.  As a bit of a refresher, you may recall from my last post that some of the forms of taking “tenancy” or title

Every so often, the extent of state laws providing for the licensing of collection agencies needs to be re-examined.  As every state, including two of the most prominent states, California and New York, historically had not licensed collection agencies,1 the state licensing of collection agencies has not been given as much attention as has been given to the state licensing of other consumer finance activities.  This changed in September 2020, when the California legislature, shortly before adjournment, enacted Senate Bill

On December 15, 2020, the District of Columbia Council unanimously passed one of the strictest bans on employee non-compete agreements in the country, prohibiting nearly all such restrictions on employment both during and after an employee leaves employment with a DC employer. The Ban on Non-Compete Agreements Amendment Act of 2020 (the “Act”) prohibits any DC employer from requesting or requiring an employee to sign a non-compete agreement. The Act defines a “non-compete” to include any provision that limits an employee’s

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), among other things, required the Consumer Financial Protection Bureau (CFPB) to adopt regulations governing the collection of certain small business lending data. Section 1071 of the Dodd-Frank Act amended the Equal Credit Opportunity Act (ECOA), as follows: “in the case of any application to a financial institution for credit for [a] women-owned, minority-owned, or small business, the financial institution shall – (1) inquire whether the business is a women-owned,

On December 27, 2020, President Trump signed a $900 billion COVID-19 relief bill, providing for, among other things, a $300 per week supplemental unemployment benefit, direct payment checks of up to $600 per adult and child, $284 billion in Paycheck Protection Program (“PPP”) loans, and $25 billion in rental assistance.   So what effect will this relief bill have on the paid leave mandated by the Family First Coronavirus Response Act (the “FFCRA”)?  As detailed in a blog post on March

Small Entity Government Use License Exception (Effective date: January 20, 2021) The United States Patent and Trademark Office (USPTO) is amending the rules of practice in patent cases to clarify and expand exceptions to the rule pertaining to government use licenses and their effect on small entity status for purposes of paying reduced patent fees. The rule change is designed to support independent inventors, small business concerns, and nonprofit organizations in filing patent applications and to encourage collaboration with the Federal

As news of a COVID-19 vaccine increased during the late fall, employers were anxiously awaiting EEOC guidance as to whether they could require employees to get vaccinated. While it will be several more months before the vaccine will be available to the general public, employers are thinking ahead and have been looking for guidance about their ability to require vaccination. In addition, health care employers and employers in essential businesses will be among the first to have to make these

On November 18, 2020, the United States Court of Appeals for the Fourth Circuit upheld a decision that retailer Lowe’s Home Centers LLC (“Lowe’s”) did not violate the Americans with Disabilities Act (ADA) when it removed a disabled store manager from his position and declined to reassign him to a similarly situated vacant managerial position.   The Plaintiff, Charles Elledge, was a long time employee of Lowe’s and had worked in a demanding position managing multiple store locations and working long

The “empty chair” defense, where the defendant denies responsibility for the plaintiff’s injuries and blames a person absent from trial (i.e. the “empty chair”), can be extremely effective in tort actions. The Court of Appeals of Maryland has rightly observed that “[t]he more the jury hears that the negligence of a third party caused the injury, the less likely the jury may be to find that the named defendant was negligent in causing the injury.”  Am. Radiology Servs., LLC v.

In my last post, “Real Estate Alphabet Soup: S Is for Survey,” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “T.” T is for Tenancy. A “Tenancy” is a right to hold title to property and can take several forms of title or ownership. A “Sole Tenancy,” by definition, is an interest held totally and solely by one individual tenant. The most common forms of joint ownership

Sometimes, a retirement plan is required to distribute a missing participant’s account balance into a state’s unclaimed property fund. Until recently, it was unclear whether this distribution is subject to withholding of federal income tax and how this distribution is supposed to be reported to the IRS. The IRS finally cleared up both issues by ruling that (1) the total amount distributable (i.e., the entire account balance) is subject to withholding of federal income tax, and (2) any distribution of $10

A recent opinion by the United States Bankruptcy Court for the Western District of North Carolina kept alive a bankruptcy trustee’s fraudulent conveyance claims based on, in part, the Internal Revenue Code (“IRC”) 10-year statute of limitations period to avoid fraudulent transfers—rather than a shorter limitations period under state law. The case is Mitchell v. Zagaroli et al. (In re Peter Lawrence Zagaroli), Case No. 18-50508, Adv. Proc. No. 20-05000, 2020 WL 6495156 (Bankr. W.D.N.C. November 3, 2020). In Zagaroli, the

On November 18, 2020 the Internal Revenue Service (IRS) released a Revenue Ruling (Rev. Rul. 2020-27) and a Revenue Procedure (Rev. Proc. 2020-51) that discuss the handling of deductions for expenses paid with forgivable Paycheck Protection Program (PPP) loan proceeds in circumstances when either: (i) forgiveness has been applied for, but not granted by the end of 2020, or (ii) forgiveness has not been applied for, but all events have been met to give rise to a forgiveness application in

As the holidays approach, many businesses have employees who travel or attend large family gatherings. Employers who have reopened their doors to working in-person will face questions about how to safely return to work after potential exposure during the holidays. Here are a few likely questions and guidance for employers to help control the spread of COVID-19. 1.  Can employers monitor where employees travel? Yes. According the Equal Employment Opportunity Center (“EEOC”), if the CDC or state or local public health officials

The Justice Department announced on November 10, 2020 that it signed a settlement agreement with Fleetlogix Inc. (“Fleetlogix”) resolving claims that the company discriminated against work-authorized, non-U.S. citizens by requiring them to provide specific and unnecessary work authorization documentation because of their citizenship or immigration status. Fleetlogix, based in San Diego, California, operates offices nationwide that provide cleaning and transportation services to rental car companies. The Justice Department’s underlying investigation in 2019 that led to the settlement showed that Fleetlogix required