On August 20, 2018, the Securities and Exchange Commission (the “SEC”) announced that it adopted amendments to Rule 15c2-12 of the Securities Exchange Act of 1934, as amended (the “Rule”). The SEC stated that it adopted the amendments to “enhance transparency in the municipal securities market” by focusing “on material financial obligations that could impact an issuer’s liquidity, overall creditworthiness, or an existing security holder’s rights.” Below are some of the “highlights” of the new changes to the Rule and the effects on continuing disclosure.
What law governs your construction contract and the claims that may arise out of it?
Answering this question incorrectly could be very costly, and so can needless…
In a divided opinion, the Sixth Circuit recently ruled that the common law “tender back” doctrine is inconsistent with the remedial purposes of Title VII and the Equal Pay Act (“EPA”). Under the common law doctrine, when a party seeks to avoid a contract on the grounds that it was obtained by fraud, duress, or the like, she must first “tender back” any benefits received under the contract. Under the Sixth Circuit’s ruling, employees who receive severance in exchange for a release of claims but later allege that the release was obtained under duress do not need to return the severance pay prior to instituting a lawsuit under Title VII or the EPA. Instead, if their claims are successful, the severance pay will be deducted from any damages ultimately recovered.
An emerging trend in cost-conscious and sustainable construction is modular construction. With traditional stick-build construction, all work is performed sequentially and on-site, and adjustments to design and construction can be made along the way. In modular construction, building units or “modules” are produced in a controlled factory environment and later delivered to the project site for incorporation into a larger building. Unlike more commonly recognized prefabricated systems, such as kitchen or bathroom “pods” often used in hotel and multi-family housing developments, modular construction involves the construction of full rooms or units. Modules are produced according to architect specifications, and structural and mechanical inspections may be performed in the factory setting prior to site delivery. State and local building codes still apply to modular construction, and many states have adopted legislation specific to modular construction and other prefabricated work.
The latest chapter in the ongoing joint-employer case between McDonald's USA, LLC ("McDonald's) and the National Labor Relations Board (NLRB) was written on Tuesday, as an administrative law judge ("ALJ") rejected a proposed settlement between the parties. At issue in the case is whether McDonald's is a so-called joint employer of its franchisees' employees and thus liable for labor law violations by those franchisees.
A recent study reports that 88 percent of contractors receive slow payments on construction projects nationwide. The report further finds that untimely payments cause lower tier subcontractors to shoulder approximately $40 billion dollars each year in additional financing costs - just to meet operating expenses.
A typical provision in franchise agreements, known as a "no-poach" or "no-switching" clause, prohibits the franchisee from hiring employees employed by other franchisees in the same system. Seven (7) large fast-food franchisors have agreed to discontinue this practice as the result of an agreement announced in a July 12, 2018 release by Washington State Attorney General Bob Ferguson's office.
On June 21, 2018, the US Supreme Court, in the South Dakota v. Wayfair case, overruled Quill Corp v. North Dakota (1992) and National Bellas Hess v. Department of Revenue of Ill. (1967), and thus erased long standing precedent in the area of sales and use tax collection.
The latest news regarding a possible path for resolution of the standard by which a franchisor may be held to be a “joint employer” of its franchisees…
At the end of the 20th century, the international legal community attempted to address increasingly common issues with the use of electronic signatures. At the federal level, Congress enacted the Electronic Signatures in Global and National Commerce Act (“E-SIGN”), to ensure the legal validity of electronic contracts and signatures in interstate and foreign commerce. Meanwhile, states began to pass their own laws pertaining to electronic signatures. In an attempt to harmonize and unify these e-signature laws, the National Conference of Commissioners on Uniform State Laws (“NCCUSL”) proposed the Uniform Electronic Transactions Act (“UETA”) for adoption by states. As of today, only Illinois, New York, and Washington state have not adopted the UETA. In Kentucky, the UETA is codified under KRS Chapter 369.
In 1933, Franklin Delano Roosevelt bolstered the national psyche by suggesting that “the only thing we have to fear is fear itself!” Eighty-five years later, in the summer of 2018, we might paraphrase Roosevelt by suggesting that “the only thing of which we can be certain is that construction markets abhor uncertainty!”
Today, there are more programs than ever at the federal, state and local levels to ensure the participation of small businesses in contracting opportunities. Congress, as well as many state and local legislators, have enacted laws to support businesses owned by veterans, disabled veterans, minorities and women. These businesses are usually referred to as “disadvantaged small businesses.” Because governmental entities offer incentives and set aside a percentage of contracting dollars for small businesses, there are a growing number of fraud claims developing in this area. According to a report issued by the Department of Justice in December, 2017, the number of lawsuits filed under the qui tam provisions of the federal False Claims Act are increasing with an average of twelve new cases being filed every week. Given the competitiveness in the construction industry to obtain contract awards, and the increasing number of governmental and private “whistleblower” claims, it is important to know and understand the fraud that occurs with government contract work.
In 2016, Kentucky enacted legislation that opened the door for innovative market driven solutions for infrastructure projects through the use of public-private partnerships (“P3”). P3 allows for a contractual agreement between a public owner and a private entity in which the private entity assumes financial, technical, and/or operational risk for the project. P3s allow public and private entities to share their resources and expertise in delivering facilities to the public. More importantly, they allow private entities to provide needed infrastructure improvements that might otherwise be impossible due to the lack of traditional public funding sources.
In previous alerts we addressed the continued national confusion about the nature and extent of federal jurisdiction over properties exhibiting “waters of the United States” asking, “What Are Waters of the United States” and “Why It Matters.” Trying to get a consensus on defining them has been impossible as the political/environmental regulatory process cycles around in a never-ending analogue to the hydrologic cycle itself. This alert briefly describes the latest twists and turns in the process.
Based on a recent Wall Street Journal article, companies that purchase equipment this year can expense 100% of the acquisition cost.
On February 15, 2018, the Federal Energy Regulatory Commission (FERC) unanimously issued Order No. 841 which has the potential to dramatically alter the electricity grid and wholesale energy market in large parts of the United States. In Order 841, FERC directed the country’s regional transmission organizations and independent system operators (RTO/ISO), the entities that manage the wholesale electric markets in large parts of the country, to establish participation rules that remove barriers to full participation in the market by energy storage resources. By recognizing the unique characteristics of energy storage resources, Order 841 has the potential to spur development of energy storage technologies and modernize the grid.
Jobsite safety remains of paramount importance for all involved in the construction industry. Recently published statistics from the National Institute for Occupational Safety and Health (“NIOSH”) and the National Safety Council (“NSC”) reflect that contractors must place continued emphasis on fall protection and on high-quality safety-training programs.
On March 22, 2017, Governor Matt Bevin signed into law the Kentucky Charter School bills which empower local Kentucky school boards with the rights and responsibilities of creating and operating charter schools.
The new Tax Cuts and Jobs Act repeals the deduction for alimony payments after 2018.
With severe winter weather pummeling much of the country, employers may be forced to delay opening their doors, close their doors early, or even close for days at a time. This leads to a persistent question—how should employees be paid during a weather closing? Whether an employer has experience with winter weather or whether an employer is dealing with it for perhaps the first time, all employers would be wise to review their inclement-weather pay policies and practices to ensure that they are in compliance with the Fair Labor Standards Act (“FLSA”).
Much attention has been paid to the doubling of the standard deduction as well as the lowering of the corporate tax rates contained in the Tax Cuts and Jobs Act of 2017 (the “Act”). The combined maximum corporate federal rate will now be 39.8 percent (corporate tax plus capital gains tax) and the top individual tax rate is 37 percent, which is the rate generally applied to the income of pass-through businesses (sole proprietorships, partnerships, and S corporations).
Partnership audits might sound like a rather boring topic, but new rules now in effect make auditing partnerships much easier for the IRS and as such should be an area of concern for businesses.
If your business relies on the Digital Millennium Copyright Act (DMCA) for protection from copyright claims, you have until December 31, 2017 to complete the electronic registration of your DMCA agent…
On December 15, 2017, in In re Brunetti, Case No. 2015-1109 (Fed. Cir. Dec. 15, 2017), the United States Court of Appeals for the Federal Circuit held that the federal trademark statute’s (the “Lanham Act’s”) bar on registration of immoral or scandalous marks is an unconstitutional restriction of free speech. If this decision stands, Mr. Brunetti may obtain federal registration of his FUCT mark for use with clothing. The result is not terribly surprising in light of the United States Supreme Court’s holding earlier this year that the Lanham Act’s bar of disparaging marks violated the First Amendment.
On Thursday, December 14, 2017, the Supreme Court of Kentucky reversed an intermediate appellate court decision and reinstated a jury verdict of slightly more than $600,000 awarded to a structural steel fabricator and erector. The award compensated the fabricator and erector for unpaid retainage and extras on a high rise project.
What is a Court to do when an attorney knowingly violates the automatic stay in bankruptcy, and after being sanctioned for that transgression, challenges an award of attorney’s fees at every possible opportunity? In its decision released on December 5, 2017, the Eleventh Circuit Court of Appeals considered just that question in affirming awards of trial and appellate attorney’s fees. The Court affirmed prior fees incurred of $134,209.36, and imposed an additional fee award of $30,559.98 as to the current appeal. This award of fees and expenses for nearly $165,000.00 was over four times the amount of the original award of actual damages of $40,000.00 made by the Bankruptcy Court for a violation of the automatic stay.
On April 27, 2017, the Supreme Court adopted and submitted to Congress various amendments to the Federal Rules of Bankruptcy Procedure. The rules become effective December 1, 2017. Some of the most significant changes affect filing requirements for proofs of claim of secured creditors under Bankruptcy Rule 3002. These amendments greatly impact the rights of secured creditors in Chapter 7, 12, and 13 bankruptcy cases.
Do Kentucky patients have a cause of action against a hospital for the negligent credentialing of a non-employee physician who is given staff privileges by the hospital? In March of 2016, the Court of Appeals answered that question in the affirmative, recognizing a new, stand-alone tort and avenue for recovery against Kentucky hospitals.
So answers the Second Witch in the opening scene of the “Scottish play” of Shakespeare, to the First Witch’s query: when shall be the weird sisters’ fateful meeting with Macbeth? At that meeting foreshadowing Macbeth’s rise to kingship (Act I, Scene III) it is clear that the witches are in the prediction business – as now must be American taxpayers anticipating some form of the Trump Administration’s tax reform proposals becoming law.
Among the many vexing problems with taxpayers’ planning is: What changes will be made in the rules for the tax-favored retirement savings? The estimated $115 billion per year of tax expenditures on retirement savings in the federal budget is perhaps the most tempting target for realization of tax savings needed to pay for the Trump tax plan’s ambitious business and personal tax cuts. All the more so now, in the wake of evident resistance among urban state Republicans to initial proposals for cutback or elimination of the present deduction for state and local income and property taxes.
Employers have a new reason to review that dusty employee handbook that may have been left untouched for years. In Stein et al. v. hhgregg, Inc., et al., a divided Sixth Circuit ruled that an employer’s having an unlawful policy on the books, even if that policy has never actually been enforced against an employee, can be sufficient in at least some circumstances for an employee’s lawsuit to survive a motion to dismiss in federal court.