Alerts & Newsletters

On Saturday, September 12, 2020, the Internal Revenue Service (“IRS”) updated a marijuana industry frequently asked questions (“FAQ”) page that provides relief to state-legal cannabis businesses. The FAQ announces that state-legal cannabis businesses can reduce their gross receipts by using an alternative accounting method under Section 471 of the Internal Revenue Code (the “Code”).

On September 2, 2020, we issued an e-alert discussing the deferral of the employee portion of Social Security taxes (“SS Tax Deferral Program”). However, on September 3, 2020, the IRS confirmed that the SS Tax Deferral Program is optional and that employers may, but are not required to, utilize this relief. Thus, the employer, and not the employee, can decide whether or not it will participate in the SS Tax Deferral Program.

On August 13, 2020, President Trump issued a Presidential Memorandum directing the Secretary of the Treasury to use his authority to defer the withholding, deposit and payment of the employee portion of Social Security taxes (“SS Tax Deferral Program”). On August 28, 2020, the Secretary of the Treasury and IRS issued Notice 2020-65 (“Notice”) to implement the SS Tax Deferral Program. This FAQ-style alert addresses the key provisions of the Notice and the many remaining uncertainties about the SS Tax Deferral Program.

On August 27, Michigan Governor Gretchen Whitmer released Executive Order 2020-172, entitled “Protecting workers who stay home, stay safe when they or their close contacts are sick,” which replaces Executive Order 2020-166. The new executive order is nearly identical to the one it replaces, with two important differences. First, the new order recognizes that an employee’s symptoms could be explained by other medical conditions, which should not prevent an employee from reporting to work. Second, the new order recognizes that an employee should not be required to stay home simply because he or she displays one of the more innocuous symptoms of COVID-19 on its own.

Not surprisingly, Dykema's volume of closed deals for the first half of the year slowed from last year’s record pace. What was somewhat surprising is that the volume of transactions in the Dental Services Organization (DSO) space did not seem to miss a beat. All told, we closed 18 DSO deals, including four in the adjacent Medical Services Organization (MSO) space (in this case, all Optometry), slightly ahead of last year’s pace. In addition, we closed deals in the hospitality, cell tower and litigation services sector. Overall, the transactions trended smaller, averaging $16M, down from 2019’s average of $117M.

Businesses across the country have wondered how the new Special Inspector General for Pandemic Recovery (SIGPR) will enforce the CARES Act’s loan requirements, especially with the large number of loan and forgiveness applications. Until recently, the answer was unclear. Press releases have announced Memoranda of Understanding (MOU) between SIGPR and three U.S. Attorney’s Offices to collaborate on investigating and prosecuting CARES Act violations. With this strengthened enforcement model being put in place, CARES Act loan recipients need to ensure their eligibility for loan forgiveness and double-check their documentation of that eligibility.

On Monday, August 3, 2020, a New York federal judge issued a decision invalidating portions of the DOL’s regulations implementing the Families First Coronavirus Relief Act (“FFCRA”). The decision’s impact changes the legal landscape employers confronting FFCRA compliance—a landscape that is unstable as the DOL and the courts sort out the legality of the disputed regulations.

On July 29, 2020, Governor Whitmer issued Executive Order Nos. 2020-160 and 2020-161. Executive Order 2020-160 replaces the prior executive orders that address stay home, stay safe restrictions in Michigan. In general, this Order moves the State to a more uniform approach to business operations and restrictions. Northern Michigan will experience the most change under the new Order as Regions 6 and 8 join the rest of Michigan with a 10-person limit on indoor gatherings and the closure of all bars. Executive Order No. 2020-161 addresses workplace safety requirements and replaces Executive Order No. 2020-145.

Eligible dental providers may now apply for Provider Relief Funds, but the deadline to do so, July 24, 2020, is quickly approaching. On July 10, 2020, the U.S. Department of Health and Human Services (“HHS”) announced an additional $4 billion in relief payments to healthcare providers and, notably, opened its provider portal to dental providers.

In order to respond to rising COVID-19 cases in Michigan, Governor Whitmer issued Executive Order No. 2020-147, which imposes new mask requirements on individuals in Michigan as well as on Michigan businesses. Importantly for businesses, the new Executive Order provides that no business that is open to the public may provide service or allow a customer to enter its premises unless that customer is wearing a facial covering. As the Order states, “no shirts, no shoes, no mask—no service.” Businesses that do not comply could risk having their business license to operate temporarily suspended.

The State of Michigan has allocated $100 million of CARES Act funding to implement the Michigan Small Business Restart Program to provide grants to Michigan businesses directly impacted by COVID-19. The grants, up to $20,000 each, will be administered by 15 Economic Development Organizations (EDOs) covering all 83 counties in the state. 47. Funds can be used as working capital to support payroll expenses, rent, mortgage payments, utility expenses or other similar expenses.

In a decision contrary to current Patent and Trademark Office (“PTO”) rules, the United States Supreme Court has found the mark BOOKING.COM as a whole is not generic and that combining a generic term with “.com” does not necessarily result in a composite term that also is generic. While the scope of protection against competitors is likely narrow, the Court’s decision opens the door to registering marks consisting of generic marks with top-level domains. After the Court’s decision, brand owners can expect the PTO to issue further guidance.

On June 30, 2020, the Senate passed an extension of the Paycheck Protection Program (PPP) to keep the program operating until August 8, 2020. On July 1, 2020, the House also approved the extension for the program which was set to end on June 30. The President is expected to sign the extension shortly. The extension permits eligible businesses to continue to apply for PPP loans through August 8, 2020, but does not permit existing PPP borrowers to apply for new loans or increase their borrowings under existing loans.

Once again, the SBA is doling out guidance in small doses, solving some questions, creating new questions and leaving most questions still unanswered. On June 16, 2020, the SBA issued a revised PPP Loan Forgiveness Application, along with related instructions, and new PPP Loan Forgiveness Application Form 3508EZ, also with related instructions. On June 22, 2020, the SBA issued Revisions to Loan Forgiveness Interim Final Rule and SBA Loan Review Procedures Interim Final Rule. The following is a list of our key observations on these latest developments.

The U.S. Copyright Office has issued a final regulation (37 CFR §202.4) permitting a single, “group” registration for “Short Online Literary Works.” To be eligible, each of the works included in the registration “must be published as part of a website or online platform, including online newspapers, social media websites, and social networking platforms.” Further, each covered work must be comprised mainly of text (this requirement distinguishes the category of covered works from the broader definition of “literary works,” which includes words, numbers, symbols). Thus, the registration will cover only copyright rights in the text of each individual work. No other copyrightable aspect will be protected, including as a compilation or collective work.

Following up on Dykema’s alert from June 18, 2020, President Trump signed a Proclamation that extends his April 22, 2020, 60-day ban on immigrant workers entering the United States until December 31, 2020. In addition, it also added those with H-1B, H-2B, L-1 and J-1 visas and any foreign national accompanying them to this ban. The Proclamation states this was done to address, in part, high unemployment levels due to the coronavirus pandemic.

Several reports, including one by the U.S. Chamber of Commerce, indicate President Trump may issue a Proclamation limiting or prohibiting the entry into the United States of foreign nationals holding H-1B, H-2B, L-1 and J-1 visas. The U.S. Chamber has reported the ban could last 120-180 days and that it would be followed by possible new regulations that would affect the staffing of U.S. companies.

Unexpectedly siding with the liberal wing of the Court, Justice Neil Gorsuch penned a 6-3 decision in Bostock v. Clayton County, holding that Title VII’s prohibition on sex-based discrimination also covers sexual orientation and gender identity discrimination. The Court’s decision dealt a historic victory for proponents of expanding gay and trans protections for workers under Title VII of the Civil Rights Act of 1964. It is clear that this decision will have wide reaching implications for employers.

On May 27, 2020, the Internal Revenue Service (“IRS”) issued Notice 2020-41 (“Notice”) providing COVID-19 relief for businesses seeking to qualify for the production tax credit for renewable energy facilities and investment tax credit for energy property. Pursuant to the Notice, the IRS extended Continuity Safe Harbor for qualified energy projects that began construction in calendar year 2016 or 2017 and provided for a Three-and-a-half Months Rule Safe Harbor with respect to services or property paid for by the taxpayer on or after September 16, 2019, and received by October 15, 2020.

In response to the ongoing COVID-19 crisis and its resulting adverse effects on the income levels of Michigan residents, a package of bills was introduced earlier this month to provide additional protections for residential tenants and owner-occupants during a declared state of emergency. The proposed bills would amend existing laws or enact new legislation to restrict the ability of landlords, mortgagees, and taxing authorities to pursue evictions or foreclosures during a declared state of emergency.

On June 4, 2020, the Internal Revenue Service released Notice 2020-39 providing relief for Qualified Opportunity Funds (“QOFs”) and their investors in response to the ongoing COVID-19 pandemic. The Internal Revenue Service also updated its Qualified Opportunity Zone Frequently Asked Questions.

Pursuant to the Paycheck Protection Program Flexibility Act of 2020, which was enacted into law on June 5, 2020, taxpayers who take out a loan under the Paycheck Protection Program of the Coronavirus, Aid, Relief and Economic Security Act (“CARES Act”), all or a portion of which is subsequently forgiven, may now also take advantage of the tax deferral of the employer’s portion of the Social Security taxes under Section 2302 of the CARES Act.

Governor Whitmer issued Executive Order No. 2020-110 on June 1, 2020. With this Executive Order, more businesses can reopen across the State of Michigan. Not all businesses, however, will be able to fully reopen yet. And all businesses are subject to the workplace safety guidelines set forth in Executive Order No. 2020-97.

On May 28, 2020, the Internal Revenue Service issued proposed regulations providing details for companies that may qualify for carbon oxide sequestration tax credits for qualified carbon oxide that has been securely captured, stored or disposed of pursuant to Section 45Q of the Internal Revenue Code.

Under the Bipartisan Budget Act of 2015 (“BBA”), all entities classified as partnerships, including limited liability companies and limited partnerships, became subject to the centralized partnership audit regime for taxable years beginning January 1, 2018, unless otherwise elected (the “BBA Rules”). Whether or not the parties choose to revise their partnership agreements to provide for the application of the BBA Rules, buyers and sellers should negotiate and include in the Membership Interest Purchase Agreement (“MIPA”), or any equivalent sale agreement, express provisions related to the BBA Rules, the push out election and indemnification from any future tax liability arising from a BBA audit.

Through the recently issued Paycheck Protection Program (PPP) Loan Forgiveness Application and Interim Final Rule on Loan Forgiveness, the Small Business Association (SBA) has once again demonstrated that the contours and requirements of the PPP program are constantly evolving. The SBA’s recent Interim Final Rule on SBA Loan Review Procedures provides some insights on how the SBA will enforce PPP qualification and forgiveness requirements. More agencies are getting involved in enforcement, as shown by the Securities and Exchange Commission (SEC) now reviewing quarterly disclosures to see if they align with representations made in applying for PPP loans. These ever-evolving standards, plus the possibility of Congress extending the time frame in which the PPP funds must be spent, all underscore the importance of effective PPP compliance programs. Given the increased risk of whistleblower complaints related to COVID-19, especially those alleging an improper PPP necessity certification, now is the time for companies to review and, where necessary, reinforce their compliance programs and anti-retaliation policies.

In a move that will improve the time for obtaining application approvals, the U.S. Citizenship and Immigration Service (USCIS) announced today it plans on resuming premium processing for Form I-129 (non-immigrant worker) and Form I-140 (immigrant worker) petitions in phases throughout June.

On May 13, 2020, the Department of the Treasury and the Internal Revenue Service (“IRS”) issued final regulations under Section 385 of the Internal Revenue Code (“Final Regulations”), which address the classification of certain related party debt as stock or equity for U.S. Federal income tax purposes. The Final Regulations adopt, without any substantive changes, the 2016 proposed regulations, while leaving open issues related to distribution regulations to be addressed in future IRS guidance.

The 2020 appeal season is moving and changing quickly, so be sure to not miss any filing deadlines. The deadline for filing petitions with the Michigan Tax Tribunal is set by statute as May 31. On May 14, 2020, Michigan Governor Gretchen Whitmer issued Executive Order 2020-87 (the “Order”), to extend the deadline to protest 2020 property tax assessments to grant some amount of relief to individuals and businesses amid the coronavirus/COVID-19 crisis.

Dykema’s Labor & Employment Practice Group created a Q&A overview addressing best practices for employers to consider when businesses return to work. The document discusses frequently asked questions concerning employer recalls, pay and benefits, medical documentation, personal protective equipment (PPE) requirements, and more.

The USCIS on Friday, May 15, sent a request to Congress for $1.2 billion in emergency funding, proposing to pay it back with a 10% surcharge on application filing fees. This surcharge, if adopted, will entail greater expense for employers and applicants along with the expectation of further-decreased processing times.

With Executive Order No. 2020-92, Governor Whitmer continues reopening Michigan’s economy, with phased reopening of retail, restaurants, and offices in the Upper Peninsula and certain counties in the Northern Lower Peninsula. As part of this trend, Governor Whitmer has issued Executive Order No. 2020-91, which details the compliance measures that businesses must follow as they reopen. She also issued Executive Directive No. 2020-6, which is aimed at fostering compliance with the requirements set out in EO 2020-91 by directing state departments and agencies to monitor for compliance with the requirements in Executive Order No. 2020-91 and to bring enforcement actions as necessary. Executive Directive No. 2020-6 also provides that a Director of COVID-19 Workplace Safety will be appointed to coordinate the state’s efforts to monitor and enforce workplace safeguards. Is your business compliant with EO 2020-91?

Following Governor Whitmer’s issuance of Executive Order 2020-77, additional sectors of Michigan’s economy may reopen in-person operations, including all manufacturing businesses. Business, however, will not be as usual. There are important changes and requirements that all businesses will be required to put in place before reopening not only to comply with the relevant executive orders but also to limit potential liability. Is your business ready to comply with all of the new regulatory requirements amid COVID-19?

As Michigan employers begin to think about how many employees to bring back to work, one option to consider is Michigan’s Work Share program, whereby total work hours are spread across a large group of employees as opposed to having fewer employees return to work on a full-time basis. But what are the benefits and drawbacks of work share? And how can employers set a plan up?

On April 29, 2020, the Internal Revenue Service issued updated guidance in the form of 94 Frequently Asked Questions (“FAQs”) in connection with the employee retention credits (“ERC” or “credits”) which are available to eligible employers pursuant to Section 2301 of the Coronavirus Aid, Relief and Economic Recovery Act (“CARES Act”). Although the FAQs do not constitute binding legal authority for purposes of claiming the credits, they help clarify the Internal Revenue Service’s position in interpreting and implementing the ERC program under the CARES Act and provide further guidance for businesses exploring ERCs in unique employment situations.

With the 2020 tax appeal season in process, we are prepared to file clients' tax appeals in both Michigan and Illinois. We can assist with analyzing your assessment (no fee for this preliminary work), preparing your appeal, meeting filing requirements and deadlines, and obtaining the best possible tax relief with a fair and equitable assessment. Dykema also happily offers flexible fee arrangements for tax assessment work, including hourly and contingency fee arrangements.

As borrowers use their loan proceeds from the Paycheck Protection Program (PPP) to continue or restore payroll and call back laid-off employees, they may encounter reluctance or refusal by employees to return to work, which could impede borrower’s ability to obtain full forgiveness on their PPP loan. Borrowers looking toward full forgiveness of the loan amount must maintain a staffing level during the eight-week period following the funding of the loan at the level maintained during a comparative period preceding the loan, as described in Section 1106(d)(2) of the CARES Act.

Michigan Governor Whitmer signed Executive Order 2020-77 today, permitting manufacturing workers to resume work as part of the MI Safe Start Plan. Manufacturing workers, including workers in the automotive industry, are allowed to resume work on May 11, 2020, one week ahead of the planned restart date of certain Michigan automakers. However, this resumption of work is subject to stringent precautionary measures and safeguards identified in the Order.

On April 30, 2020, in response to public input, the Federal Reserve Board announced it was expanding the loan options available to businesses under the Main Street Lending Program and published a related FAQ. This announcement, which follows the Federal Reserve’s initial April 9, 2020, announcement, increased the maximum size of eligible businesses, created a new third loan option, lowered the minimum loan size for certain loans to $500,000, and expanded the pool of eligible businesses.

On April 30, 2020, the Internal Revenue Service issued a Notice providing guidance on the deductibility of certain expenses incurred pursuant to the Paycheck Protection Program (“PPP”) of the Coronavirus Aid, Relief and Economic Security Act. The IRS held that if a taxpayer receives a PPP loan, uses the loan proceeds to pay for qualified trade or business expenses, and a portion of the loan is subsequently forgiven, no deduction would be allowed for such otherwise deductible expenses paid with the forgiven portion of the covered loan.

The fight against COVID-19 has had a serious impact on businesses across Michigan and the nation, and the construction industry is no exception. May 1, 2020, marked a step toward a new normal as Michigan Governor Gretchen Whitmer signed Executive Order 2020-70 easing restrictions on construction projects. The Governor’s office also issued a press release explaining how the Order applies to work on construction projects. Although these guidelines require increased diligence at construction sites, re-engaging the economy, particularly in the construction sector, marks a step forward on the road to recovery.

The Coronavirus Aid, Relief, and Economic Security Act amended Section 172 of the Internal Revenue Code of 1986 with respect to net operating losses (“NOL”) arising in 2018, 2019 and 2020 by restoring some of the favorable provisions applicable to NOLs prior to the enactment of the Tax Cuts and Jobs Act of 2017. The modified rules were designed to assist struggling taxpayers in the wake of the COVID-19 pandemic and provide them with liquidity in the form of tax refunds and reduced income tax liability in current and future years. The Internal Revenue Service issued additional guidance implementing and clarifying some of the NOL provisions of the CARES Act.

Dykema would like to remind U.S. employers that they must use the October 21, 2019, version of the I-9 Employment Eligibility Verification form beginning May 1, 2020. Since January 31, 2020, employers were allowed to use either the July 17, 2017, or October 21, 2019, version of the form. The Form I-9 is used to confirm the identity and employment authorization of people hired as employees by U.S. employers.

As the need for consumer protections amidst the COVID-19 pandemic continues to grow, the Illinois Supreme Court is helping to provide those protections. In its latest move, the high court has ordered limits to freezes on personal bank accounts. The Order applies to garnishment and citation proceedings arising out of a money judgment where a summons or citation directed to a bank was served after March 8, 2020, or had an original return date between March 8, 2020, and the date of termination of the Governor’s disaster proclamations.

On April 13, 2020, the Internal Revenue Service issued Revenue Procedure 2020-26 (the “Revenue Procedure”) providing guidance to lenders and loan servicers offering relief to borrowers with federally-backed residential and multifamily mortgage loans, including relief mandated under the Coronavirus Aid, Relief, and Economic Security Act, as well as similar state programs. The Revenue Procedure also applies to non-federally backed mortgage loans, provided that the borrower is suffering financial hardship as a result of COVID-19 and the relief is sought between March 27, 2020, and December 31, 2020.

The United States Supreme Court recently held that a plaintiff need not show that a defendant willfully infringed the plaintiff's trademark as a requirement for recovering the defendant’s profits. Though the Court’s decision appears to lower the burden for claimants seeking to recover the defendant’s profits attributable to the infringement, the claimant seeking an infringer’s profits must still prove the infringer’s culpable intent or callous disregard of the trademark owner’s rights. Thus, trademark claimants must develop proof of the infringer’s culpable “state of mind,” which amounts to more than just an “innocent’ infringement.

With an additional $310 billion in funding for the Paycheck Protection Program (PPP) signed into law, energy companies should consider applying for PPP loans in order to maintain daily operations during the COVID-19 crisis. PPP loans are especially attractive to struggling businesses because such loans may be forgiven up to the entire principal borrowed, including interest. There are, however, elements of the CARES Act regarding loan forgiveness that energy companies should assess prior to applying.

On April 24, 2020, Governor Whitmer reaffirmed the stay-at-home measures set forth in Executive Order 2020-42, amended the scope of that order, and extended the duration of such measures through May 15, 2020 (unless modified earlier). While many of the restrictions from her prior executive orders remain in place, Executive Order 2020-59 includes some easing of in-person operation restrictions as well as some corresponding requirements for those operations. What does this mean for your business?

In a turn of events, likely in response to the headlines relating to companies returning PPP loan proceeds, on April 23, 2020, the Small Business Administration (SBA) and Department of the Treasury updated the Paycheck Protection Program Loans Frequently Asked Questions to include Question 31, which has been seen by many as a change in eligibility. While the FAQ specifically calls out large and public companies, Question 31 should make all applicants pause and evaluate their eligibility. Whether you have already received your PPP loan proceeds or are preparing to apply in the second round of funding, it is critical that you carefully review and confirm all certifications in the PPP application, including this one.

As all lenders know by now, the Coronavirus Aid, Relief, and Economic Security Act’s (“CARES Act”) guaranteed Paycheck Protection Program (“PPP”) loans are the key piece of economic relief for small businesses during the COVID-19 crisis. Yet, in the rush to get those loans flowing into the economy, the Small Business Administration (“SBA”) issued an interim regulation that raises substantial unanswered questions about participating lenders’ compliance policies. Business Loan Program Temporary Changes; Paycheck Protection Program (proposed Apr. 2, 2010) (to be codified at 13 C.F.R. pt. 120). Those questions are starkly different yet similarly important for banks and other traditional lending institutions accustomed to operating under the Bank Secrecy Act (“BSA”) and those nonbank lenders who have never been under the BSA’s purview.

The Michigan Department of Treasury recently issued two departmental notices; a Notice of Automatic Extension of State and Income Tax Filing Deadlines (the “Notice of Automatic Extension”) and a Notice Regarding Electronic Requests for Informal Conferences. The Notice of Automatic Extension provides taxpayers additional extensions to file Michigan income tax returns and remit tax and waive penalties previously provided under the guidance of Executive Order 2020-26 and U.S. Department of Treasury Notice 2020-23. The Notice Regarding Electronic Requests for Informal Conferences provides taxpayers who have been denied a claimed refund or had a claimed refund adjusted the opportunity to request an informal conference via email.

After stating he planned on issuing an Executive Order earlier this week, President Trump yesterday issued a proclamation barring intending immigrants from the United States for 60 days beginning at 11:50 p.m. on April 23, 2020. It states it is intended to help U.S. workers facing high levels of unemployment due to the Coronavirus. This alert highlights those covered by the proclamation, as well as those exempted from it.

Now that covered employers are providing paid leaves under the Families First Coronavirus Act (the “FFCRA”), more questions about the FFCRA’s nuances are surfacing. In an effort to further guide employers who are trying to navigate the new law, the Department of Labor has added to its growing list of FAQs about the FFCRA, which includes clarification of some of its earlier answers. The substantive changes are contained in FAQs 80 through 88, in which the DOL focuses on the calculation of available leave time and regular rates of pay to be used for FFCRA paid leaves. This alert highlight these new guidance topics.

A recent decision by the Supreme Court of Pennsylvania concerning a challenge to Governor Tom Wolf’s executive order relating to COVID-19 could impact disputes nationwide that arise out of the pandemic and involve a determination of whether COVID-19 constitutes a “natural disaster” or other like term within the context of force majeure clauses. The case serves as a preview of an issue courts across the country will face when interpreting whether the language of a force majeure clause includes the COVID-19 crises.

Following up on his recent tweet to temporarily halt all immigration to the United States due to the coronavirus pandemic, President Trump announced his upcoming Executive Order would be limited to those people seeking permanent resident status in the United States (“green cards”) and would last for 60 days. It is unclear at this point how the 60-day halt will affect the current situation.

On April 20, 2020, President Trump stated he would sign an Executive Order temporarily suspending immigration into the United States. He did not make any other statements or provide details on this plan or how his Order might affect foreign nationals already in the U.S. or applications pending with the US Citizenship and Immigration Service.

The U.S. Chamber of Commerce Foundation is sponsoring the Save Small Business Fund—a grantmaking initiative offering short-term relief for small employers who are struggling during the COVID-19 outbreak. The fund will provide $5,000 grants to small employers in the United States and its territories that must be applied toward business expenses. The application is expected to be short, taking about 10 minutes to complete.

The Michigan Economic Development Corporation has announced the Tech Startup Stabilization Fund—a $3 million fund that will provide capital and support for Michigan tech startups impacted by the COVID-19 pandemic. ID Ventures is administering the fund and accepting applications from tech startups across the state at TSSFund.com. The fund will provide loans and investments ranging from $20,000-$200,000 based on the startup’s sector, stage, estimated runway, and demonstration of need. There is currently no application deadline. Applications will be accepted on a rolling basis and the fund is expected to remain open for application over the next 12 months.

The Coronavirus Aid, Relief, and Economic Security Act (the “Act”) provides emergency assistance for individuals, families, and businesses affected by the coronavirus pandemic by temporarily permitting the Small Business Administration (“SBA”) to guarantee certain loans under a Paycheck Protection Program (“PPP”) to qualified organizations, including certain small business concerns and nonprofit organizations. A business concern or nonprofit organization is generally eligible for the PPP if it, combined with its affiliates, has 500 or fewer employees. The current affiliation rules have been revised to exempt certain relationships of faith-based organizations from the SBA’s general principles of affiliation.

The COVID-19 crisis has triggered an unprecedented response of federal and state relief programs to provide health care resources and economic relief. Once the country moves past the immediate crisis, the government will take a hard look at emergency payments. Along with $2 trillion in relief, the CARES Act established a new law enforcement authority within the Treasury Department: the Special Inspector General for Pandemic Recovery (the SIGPR). Congress conveyed broad authority to the SIGPR, including the power to administer oaths and take testimony without seeking approval from the Secretary of the Treasury; and to apply for arrest and search warrants without authorization from the Attorney General.

The United States Department of Justice (DOJ) and the Federal Trade Commission (FTC) have made it clear that they will act to protect employees on the front lines of the battle against COVID-19. Given the government’s prior focus on antitrust issues in the labor market, including their prior indication that they will pursue criminal remedies where appropriate, employers must be more careful than ever to ensure that they do not run afoul of antitrust laws in this area.

In the face of the COVID-19 pandemic, Governor J.B. Pritzker has provided relief to Illinois consumers’ pocketbooks. On April 14, 2020, the Governor issued Executive Order in Response to COVID-19 No. 23 (“Executive Order 23”). The stated purpose of Executive Order 23 highlights the Governor’s concern for ensuring Illinois residents have funds for essential items such as food, medicine, housing, and transportation. The COVID-19 pandemic and social distancing requirements are likely to interfere with a consumer debtor’s ability to contest debt collection including traveling to court hearings or financial institutions to seek relief from consumer debt collection activity.

On April 10, 2020, the Internal Revenue Service (the “IRS”) issued Revenue Procedure 2020-22 to provide guidance related to business interest expense limitations and elections available for certain real property trade and farming businesses under Section 163(j)(7) of the Internal Revenue Code (the “Code”). Pursuant to this Revenue Procedure, electing property trade and farming businesses are allowed to withdraw an election, or to make a late election on an amended Federal income tax return, in order to take advantage of the benefits available under the Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136 (the “CARES Act”).

On April 9, 2020, the Federal Reserve announced that it was taking additional actions to provide up to $2.3 trillion in loans to support the U.S. economy, which includes the creation of two new facilities to support lending to small mid-sized businesses; the Main Street New Loan Facility and the Main Street Expanded Loan Facility. This alert provides some details regarding the eligibility, terms, requirements and conditions for these two Main Street Lending Programs.

On Thursday, April 9, 2020, the U.S. Department of the Treasury issued Notice 2020-23 updating and expanding the relief granted by Notices 2020-18 and 2020-20. Notice 2020-23 postpones tax filing and payment deadlines until July 15, 2020, for many taxpayers in order to grant some amount of relief to individuals, businesses, non-profit organizations and trusts/estates amid the coronavirus/COVID-19 crisis. In contrast to the preceding Treasury Notices issued in 2020 postponing tax deadlines, Notice 2020-23 does not limit the relief granted to Federal tax payments and filings otherwise due April 15, 2020, but instead expands the class of postponed deadlines to include specified filings, payments, and time-sensitive actions due between April 1, 2020, and July 14, 2020.

On April 8, 2020, the Internal Revenue Service issued Revenue Procedure 2020-23, which allows eligible partnerships to file amended partnership returns for taxable years beginning in 2018 and 2019 in order to take advantage of the various tax incentives provided under the Coronavirus Aid, Relief, and Economic Security Act.

On Wednesday, April 8, 2020, Michigan Governor Gretchen Whitmer issued Executive Order 2020-41, which relaxes the witness and notary requirements for documents that would otherwise require in-person witnessing and/or notarization, such as Michigan estate planning documents, executed during the Coronavirus/COVID-19 pandemic. In particular, if certain requirements are met, documents may be witnessed or notarized using two-way, real-time audiovisual technology.

The Coronavirus Aid, Relief, and Economic Security Act, H.R. 748 (the “CARES Act”), signed into law by President Trump on March 27, 2020, provides considerable relief for individuals and businesses in the form of financial assistance and tax-related benefits. This alert contains short descriptions of the tax benefits available for businesses, including employers and self-employed individuals under the CARES Act.

On Saturday, April 4, 2020, the Antitrust Division of the U.S. Department of Justice (“DOJ”) issued a business review letter to a number of providers of Personal Protective Equipment (“PPE”) and pharmaceutical products, stating that the DOJ “presently does not intend to challenge” their efforts to expedite and increase manufacturing, sourcing, and distribution of PPE and medications in connection with Project Airbridge. The DOJ issued this Business Review Letter pursuant to the expedited review process (discussed in a recent COVID-19 alert) it implemented to evaluate responses to the COVID-19 pandemic.

The Coronavirus Aid, Relief, and Economic Security Act (the “Act”) provides significant relief for employee benefit plan participants and includes both required and discretionary changes. Plan sponsors should immediately review their benefit plans to ensure that amendments are properly and timely implemented to ensure that their plans continue to operate in accordance with applicable law.

Nursing homes have been on the front lines throughout the COVID-19 pandemic as they care for the persons most at risk. In an effort to improve safety and curb the spread of COVID-19, federal and state authorities are relaxing certain compliance obligations. Despite this regulatory latitude, nursing facilities should remain aware that federal and state agencies continue to closely monitor nursing home compliance.

Even though the COVID-19 crisis has shuttered many government and commercial activities, the nation’s antitrust regulators are still very much open for business. As we discussed at the onset of the crisis, the Antitrust Division of the Department of Justice and Bureau of Competition of the Federal Trade Commission will continue to aggressively prosecute “hard core” antitrust violations, particularly those involving companies and individuals who attempt to restrain competition in critical markets such as personal protection equipment. But businesses, even competing businesses, may still collaborate in response to this emergency in ways that promote competition as opposed to restraining it.

In an apparent attempt to further reduce the spread of COVID-19 in Michigan, on Friday, April 3, Michigan Governor Gretchen Whitmer issued Executive Order 2020-36, which provides protection to all employees who stay home when they are at “particular risk” of infecting others with COVID-19. While this latest Order is well-intentioned, as implemented it may create significant impediments for employers who are attempting to staff positions in critical industries, and particularly for private sector employers with fewer than 500 employees who are required to provide benefits under the recent federal paid leave laws.

As employers try to comply with the new Families First Coronavirus Response Act’s (FFCRA) paid sick leave and expanded family and medical leave requirements, the Department of Labor has thrown them a curveball by quietly changing the answers to some of its Guidance about the FFCRA as well as adding 19 more FAQs to its prior compendium. These changes and additions focus on a) how an employer’s existing PTO policy may interact with the FFCRA, b) the definition of first responder, and c) the treatment of employees currently on non-FFCRA leaves of absence.

On March 27, 2020, the U.S. Court of Appeals for the District of Columbia addressed the question of discovery costs in a long-running False Claims Act case, U.S. ex rel. Barko v. Halliburton (No. 19-7064, March 2020) (“Barko”). In Barko, a former employee claimed that an affiliate of Halliburton, Kellogg Brown & Root Services, inflated costs and received kickbacks from subcontractors during the Iraq war during the early to mid-2000s. After a contentious, lengthy litigation, including 64 document requests and more than 2.4 million pages of potentially responsive documents, the District Court granted summary judgment which was upheld by the Court of Appeals in 2017. But that decision did not completely end the matter.

On April 2, 2020, the U.S. Small Business Administration (SBA) issued an interim final rule, providing additional guidance on the Paycheck Protection Program (PPP). Here are some of the highlights of new and/or clarified information from the previous guidance issued by Treasury and SBA and the text of the CARES Act

On April 1, the DOL provided employers with further clarity on the FFCRA by publishing temporary regulations. These regulations will be effective from April 1, 2020, until December 31, 2020—the same effective period of the FFCRA. Also relevant to employers, the IRS issued guidance regarding the FFCRA tax credit. As with our other alerts on the FFCRA, the following highlights key aspects of the new regulations.

The State of California and the City of Los Angeles are providing emergency assistance for California small businesses. These grants and loans are separate from incentives and programs being offered by the U.S. Small Business Administration. The State is also reminding businesses of existing small business loan programs that affected businesses can utilize. Information about the programs and how to apply are highlighted in this alert.

The Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) provides for various loans, loan guaranties and other forms of financial assistance to U.S. businesses both small and large and in specific industries and sectors. This alert provides some details regarding the eligibility, terms, requirements and conditions for the programs.

Under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), the USPTO Director may modify certain patent and trademark-related deadlines where the COVID-19 outbreak has either prejudiced applicants’ rights or interfered with the filing of a document or fee payment. The USPTO provided guidance for extending the time to submit documents or fees which otherwise would have been due on or after March 27, 2020. This relief provides a 30-day deadline extension from the initial due date for certain filings and fees required in patent and trademark applications, patent reexamination proceedings, and Patent Trial and Appeal Board and Trademark Trial and Appeal Board proceedings due between March 27, 2020, and April 30, 2020.

On April 2, 2020, the U.S. Department of the Treasury issued a final borrower application and provided lenders with the required data the federal government will collect electronically to guarantee the loans. The lender application form requires the lender to certify they have gathered the requisite information from the applicant, as outlined in the updated borrower application form. The updated borrower application reflects several changes in information the applicant will be required to provide to lenders.

The USCIS announced that its proposed rule that would have authorized up to 35,000 new H-2B visas has been placed on hold and no new visas will be issued due to the economic effects of the COVID-19 pandemic. This is most likely a result of the high unemployment rates we are seeing due to the virus.

The coronavirus pandemic has impacted the food industry, just as it has many others. The good news is that food-to-person transmission of the disease does not seem to be a risk. The challenge remains keeping workers safe from airborne and surface transmission. However, the FDA and the USDA have provided guidance and recommendations to food producers to deal with COVID-19. The guidance focuses on stopping the person-to-person spread of the disease. There are also supply chain concerns addressed in the guidance and waivers for some in-person requirements.

On March 31, 2020, the U.S. Department of the Treasury, which is supporting the U.S. Small Business Administration (SBA) in administering the Paycheck Protection Program (PPP), and SBA issued preliminary guidance on the program and made available the form of application. Further guidance, such as additional modifications of the existing SBA affiliation rules for the program relating to whether employees of a related party are counted in the employee count, may be subsequently released.

The USCIS has announced it will extend its suspension of in-person services at its field offices, asylum offices, and application support centers (ASCs) until May 4, 2020. It has also indicated it may extend these closures beyond that date if needed. USCIS will continue to provide limited emergency services during these closures.