- March 22, 2017
Two typical “boilerplate” provisions in contracts are a “choice of law” provision, which specifies which state’s law should be applied in interpreting the contract, and a “jury waiver” provision, under which the parties agree to waive their rights to a jury trial in the event a dispute relating to the terms of the contract arises. We want to alert you to a recently published decision in California which highlights the importance of not simply relying on “boilerplate” language when entering into contracts.
- March 2, 2017
Dykema’s Privacy and Data Security Group has seen a significant rise in the number of phishing scams in the past month targeting a company’s W-2 information for their employees. This tax season, the threat has expanded beyond typical for-profit organizations and is now targeting schools, restaurants, hospitals and other nonprofit organizations.
- February 28, 2017
The U.S. Department of Justice, through its Fraud Section of the Criminal Division, (the “DOJ”) recently released a memorandum entitled Evaluation of Corporate Compliance Programs (“Compliance Memo”) as part of its ongoing focus on compliance. In the Compliance Memo, the Fraud Section sets out “sample” topics and questions that it considers when evaluating a compliance program.
- The Point of Retrieval or the Point of Disclosure: Federal Magistrate Judge Rules Contrary to Second Circuit’s Microsoft Stored Communications Act Warrant CaseFebruary 23, 2017
A February 3, 2017, decision injected uncertainty into the reach of the federal government to obtain emails stored outside of the United States when a magistrate judge in the U.S. District Court for the Eastern District of Pennsylvania held that warrants issued under the Stored Communications Act 18 U.S.C. §§2701 et seq., (the “SCA”) can reach data stored outside the U.S. The magistrate judge’s opinion diverged from the Second Circuit’s Microsoft opinion, which held that domestic companies are not required under the SCA to provide information stored in foreign jurisdictions.
- February 14, 2017
The procedures relating to audits of entities taxed as partnerships (including many limited liability companies) have been almost completely revised, generally effective for tax years beginning after 2017. The old Tax Equity and Fiscal Responsibility Act of 1982, Public Law 97-248, (“TEFRA”) audit procedures have been replaced by a new regime enacted into law on November 2, 2016. The new approach will, in many cases, result in the tax, interest and penalties from an audit adjustment being imposed upon the partnership instead of its partners.
- February 2, 2017
With the new Trump Administration and Republican majorities in both the House and Senate, Republicans have complete control of the executive and legislative branches of government for the first time in 10 years. As a result, many in the banking industry are cautiously optimistic that it will be possible to enact policy changes that loosen some of the restrictive regulations that resulted from Dodd-Frank and the Obama Administration’s implementation of the law. Burdensome regulation is often blamed for holding back our nation’s economy and preventing a full economic recovery. With the Republican take-over of Washington, leading banking organizations, like the American Bankers Association (ABA) and the Independent Community Bankers of American (ICBA), are expected to pursue a robust policy agenda that focuses on easing regulation and improving consumers’ access to credit and increasing economic growth.
- February 2, 2017
America’s infrastructure received an overall grade of “D+” in The American Society of Civil Engineers Report Card for America’s Infrastructure, most recently published in 2013 (an updated Report Card is expected to be released on March 9, 2017). Grades for individual infrastructure categories ranged from a high of a “B-“ for solid waste to a low of “D-“ for inland waterways and levees. Other infrastructure sectors all received grades between a “D” and a “C+”. The infrastructure investment needed from 2013 through 2020 was estimated by the American Society of Civil Engineers to be approximately $3.6 Trillion, with a projected deficit of approximately $1.6 Trillion. Therefore, it is not surprising that during the presidential election campaign both major parties put forth programs to expand and repair infrastructure in the U.S.
- 2017 Brings Changes to Michigan Scope of Practice for Physician's Assistants and Advanced Practice Registered NursesFebruary 1, 2017
Public Acts 379 and 499 of 2016 will bring significant changes to the scope of practice of physician’s assistants (“PAs”) and advanced practice registered nurses (“APRNs”) in the state of Michigan. Individual and institutional health care providers should review and update their current policies, procedures, agreements and licenses to insure compliance with these changes.
- January 31, 2017
The 2017 proxy season brings forth a number of trending topics and new considerations public companies should bear in mind.
- January 31, 2017
For the second year in a row, Governor Rick Snyder has listed the proposed Soo Locks Modernization Project as a top priority in his State of the State address. Michigan’s top executive stated that he would urge President Donald Trump and Congress to commit to funding a second 1,000-foot lock in Sault Saint Marie. In support of his request, Snyder cites two reports: one on security issues and the other on the potential economic impact of the proposed renovations.
- January 23, 2017
An industry coalition formally asked the Trump Administration for a U.S. Department of the Treasury Undersecretary for Technology to be appointed. Just one area that could be quickly impacted by the new administration.
- January 23, 2017
The future of the CFPB is one of the hottest hot topics in the post-election environment. Created by Title X of the Dodd-Frank Act (DFA), the CFPB has been the centerpiece of consumer-related financial reform — and the focus of controversy from industry stakeholders.
- January 23, 2017
The House Financial Services Committee’s previous passage of the Creating Hope and Opportunity for Investors, Consumers, and Entrepreneurs” Act (“CHOICE Act”) provides a roadmap to potential financial regulatory reform early during the Trump administration, including reform of the Dodd-Frank Act’s and BASEL III’s bank capital requirements. House Committee on Financial Services Chairman Jeb Hensarling (R-TX-5) has indicated a desire to introduce a “2.0” version of the bill early in 2017 when the new Congress convenes.
- January 12, 2017
As surely as the Tournament of Roses parade marches down Colorado Boulevard in Pasadena at the start of a new year, California’s Legislature and courts inexorably march employers along an increasingly arduous path toward compliance. Employers turned the calendar to 2017 to find that this year brings more of the same.
- January 10, 2017
President-elect Donald Trump has consistently stated that he will renegotiate or terminate American participation in NAFTA—the North American Free Trade Agreement. For businesses that rely on NAFTA, there are two recurring questions: (1) Can he do it? (2) What happens if he does?
- December 28, 2016
Earlier this year, the Equal Opportunity Employment Commission issued final regulations regarding employer-sponsored wellness programs and compliance with the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). Wellness programs that collect employee health information or ask employees to undergo a medical test must comply with the ADA, and wellness programs that collect genetic information, including family medical histories or health information from an employee’s spouse, must comply with GINA. Beginning January 1, 2017, one of the requirements under these final regulations is a notice that employees and their spouses must receive prior to undergoing a medical test or answering questions regarding their health.
- December 27, 2016
When a businessperson becomes the target or subject of a criminal investigation, a critical consideration for defense counsel is whether to meet with the prosecutor in a proffer session, where the person, with counsel’s assistance, offers a candid and complete narrative of the events in question. The goal of the proffer session is to convince the prosecutor that the proffering witness is not culpable and should not be charged, or where the proffering witness has some culpability, that the witness has valuable knowledge that could strengthen the government’s case against a higher-priority target. The individual hopes the proffer session will lead to a non-prosecution agreement or a favorable plea agreement.
- December 23, 2016
As employers with California employees are well aware, California wage-hour law is about the strictest in the country, mandating such things as meal and rest breaks for employees who are not exempt from overtime under the administrative, professional, executive or other exemptions.
- December 22, 2016
On December 7, 2016, the Office of Inspector General (OIG) issued two final rules revising the safe harbors under the Anti-Kickback Statute (AKS) and the Civil Monetary Penalty (CMP) Rules. The OIG finalized a series of new safe harbors proposed in October 2014 to address beneficiary inducements, in other words, benefits given to Medicare/Medicaid beneficiaries that might influence their choice of Medicare/Medicaid provider.
- December 20, 2016
Effective January 1, 2017, the Michigan minimum wage will increase to $8.90 per hour. The state minimum wage for tipped employees will increase to $3.38 per hour. These rates are greater than their federal counterparts, and so Michigan employees must be paid no less than these rates.
- December 19, 2016
The National Highway Traffic Safety Administration (“NHTSA”) issued its long-anticipated Notice of Proposed Rulemaking on Vehicle-to-Vehicle Communications (“NPRM”) on December 13, 2016. The NPRM proposes to add a new safety standard to the current Federal Motor Vehicle Safety Standards to require the use of vehicle-to-vehicle (“V2V”) technology in all new light-duty vehicles over a two- to four-year phase-in period following issuance of a final rule.
- Seeking Comment By February 3, 2017December 14, 2016
The National Highway Traffic Safety Administration (NHTSA) has proposed driver distraction guidelines for non-driving tasks enabled by portable and aftermarket electronic devices. The guidelines build upon NHTSA’s existing distracted driver guidelines (the “Phase 1 Guidelines") for manufacturer-installed devices operated by a driver through visual-manual means.
- December 14, 2016
On December 5, 2016, Governor Snyder signed the Qualified Dispositions in Trusts Act, which becomes effective February 5, 2017. Michigan joins 16 other states that permit domestic asset protection trusts (DAPTs), irrevocable trusts that, if certain legal requirements are met, can shield assets from the claims of a person’s creditors.
- December 12, 2016
Michigan’s Governor Rick Snyder has signed into law historic autonomous vehicle legislation (the “AV Legislation”) permitting the operation on Michigan roadways of autonomous vehicles, platoons of electronically coordinated vehicles and autonomous ride-hailing fleets.
- December 8, 2016
The Treasury recently issued several new final, temporary and proposed regulations under Code Sections 704, 707 and 752 (the “New Regulations”) significantly affecting the taxation of many partnership transactions. For purposes of this discussion, a partnership and its partners includes a limited liability company taxed as a partnership and its members. This Alert highlights several common situations impacted by the New Regulations.
- December 5, 2016
The U.S. Environmental Protection Agency (EPA) published its “Hazardous Waste Generator Improvements Rule” on November 28, 2016. (81 Fed. Reg. 85732–85829.) While some of the changes will be welcomed by hazardous waste generators who accumulate wastes, one particular change almost certainly will not. It is found in Section 262.10(g)(2) of the rule, which states:
A generator’s noncompliance with a condition for exemption in this part is not subject to penalty or injunctive relief under section 3008 of RCRA as a violation of a 40 CFR part 262 condition for exemption. Noncompliance by any generator with an applicable condition for exemption from storage permit and operations requirements means that the facility is a storage facility operating without an exemption from the permit, interim status, and operations requirements in 40 CFR parts 124, 264 through 267, and 270 of this chapter, and the notification requirements of section 3010 of RCRA. Without an exemption, any violations of such storage requirements are subject to penalty and injunctive relief under section 3008 of RCRA.
- November 28, 2016
The IRS recently issued Notice 2016-70 granting an automatic 30-day extension for Applicable Large Employers (ALEs) to furnish Form 1095-C to full-time employees. Under the existing reporting rules of the Affordable Care Act (ACA), ALEs normally need to issue the 2016 Form 1095-C to all full-time employees by January 31, 2017. Under Notice 2016-70, ALEs have until March 2, 2017, to distribute the 1095-Cs to full-time employees. This extension also applies to insurers and other providers of minimum essential coverage who will be furnishing the Form 1095-B to individuals who are enrolled in such coverage. The IRS notes that any requests for a 30-day extension that were previously filed by employers will be ignored.
- November 23, 2016
Late Tuesday afternoon, the United States District Court for the Eastern District of Texas granted a motion brought on behalf of 21 states and supported by business groups led by the United States Chamber of Commerce to preliminarily enjoin the new overtime exemption regulations set to go into effect on December 1, 2016. Those new regulations were announced in May by the United States Department of Labor (“DOL”) and, if they had gone into effect, would have increased the minimum salary threshold for most executive, administrative and professional employees from $455 per week (or $23,660 per year) to $913 per week (or $47,476 per year). The new rules would have jeopardized the exempt status of 4.6 million employees.
- November 21, 2016
On April 4, 2016, Treasury released proposed regulations under Section 385 of the Internal Revenue Code (“Code”) governing when intercompany debt will be treated as equity for federal tax purposes. [See our Alert dated May 2, 2016]. Although highly publicized as intending to curb inversion transactions and earnings stripping arrangements, the proposed regulations also upended decades of relatively settled debt/equity concepts. They threatened the tax treatment of debt instruments in a broad range of domestic and foreign related party transactions, running from private equity investments, to leveraged ESOP structures, to the ordinary capitalization of subsidiaries with debt and equity, and common intercompany cash pooling arrangements. After considerable comments (more than 29,000) from the business community and professionals, and public hearings, on October 13, 2016, Treasury issued final and temporary regulations (the “final regulations”) that, with Treasury’s accompanying explanation, concisely provide guidance in approximately 127 pages. This Alert summarizes the key features of the final regulations and compares them to the proposed regulations.
- Republicans Retain Control of Senate and HouseNovember 9, 2016
Donald Trump was elected as the 45th President of the United States, marking the first time a candidate without ever holding public office or serving in the military has been elected to the presidency. Mr. Trump impressively won close races in the toss up states of Ohio, Florida and North Carolina early in the night, and then later in the evening broke through in a series of states Secretary Clinton was expected to carry, winning in Pennsylvania and Wisconsin. Mr. Trump also is leading in several more states including New Hampshire, Michigan and the 1st District of Maine. Although there is still a chance that Secretary Clinton wins the popular vote, Mr. Trump is on pace to secure at least 300 electoral votes giving him a decisive victory in the Electoral College and potentially exceeding the number of electoral votes President Obama received in 2012.
- Michigan Court’s Ruling on Flint Water Supply Claims Raises Concerns for Companies Facing Tort Claims for Migrating ContaminationNovember 1, 2016
Companies faced with environmental claims in Michigan should take note of last week’s Michigan Court of Claims’ 50-page opinion in Mays v. Snyder, Case No. 16-000017-MM (October 26, 2016), in which it ruled on a motion seeking summary disposition as to all constitutional tort claims of a putative class of water users and property owners in Flint arising out of the infamous water supply distribution issue. Ultimately, the Mays court allowed two of the plaintiffs’ claims to proceed: the violation of their individual rights to bodily integrity under substantive due process and inverse condemnation.
- October 31, 2016
The United States Department of Justice (“DOJ”) has taken the first step in seeking to overturn the U.S. Court of Appeals for the Second Circuit’s landmark Microsoft opinion by requesting that the Second Circuit reconsider its ruling that domestic companies are not required to turn over data stored in foreign jurisdictions in response to warrants issued under the Stored Communications Act (“SCA”), 18 U.S.C. §§2701 et seq.
- October 28, 2016
The U.S. Department of Justice Antitrust Division (DOJ) and Federal Trade Commission (FTC) recently released Antitrust Guidance for Human Resource Professionals (the “Guidelines”), outlining how agreements with competing employers related to the terms of employment can result in antitrust violations. The Guidelines set forth the agencies’ long-standing enforcement position that agreements among competitors on levels of compensation or other benefits, as well as agreements to refrain from soliciting or hiring each other’s employees (“no-poach” agreements) that are not tied to legitimate collaboration, constitute per se (automatic) violations of U.S. antitrust laws.
- October 11, 2016
Last month, California Governor Jerry Brown signed into law Assembly Bill 2093, which became effective immediately. This bill was passed and signed in an attempt to rein in the volume of predatory lawsuits which claim violations of accessibility laws like the Americans With Disabilities Act (ADA). While similar legislation regarding accessibility disclosures previously came into effect on July 1, 2013, we wanted to alert both landlords and tenants of the specific requirements of Assembly Bill 2093 and the changes it requires.