Publications Archive

On Tuesday, January 25, 2022, Douglas County District Court Judge Stratman issued an order denying the State’s motion for temporary injunction, upholding the Douglas County District Health Department’s Omaha Mask Mandate (the “Mask Mandate”) until a final decision can be reached on the merits regarding the legality of the Mask Mandate.

The CMS Rule is back in effect and applies to all 50 states and the District of Columbia. Although the battle in the Federal circuit courts may not be over, for the foreseeable future, all affected facilities need to take appropriate steps to achieve compliance.

The United States Supreme Court stayed the OSHA’s ETS (for employers with 100 or more employees) but stayed the earlier preliminary injunctions on the CMS rule, allowing it to be enforced unless and until there is a final ruling on the merits finding the rule invalid.

As its name suggests, substantial completion is not the same as final completion. While the statutory definition of substantial completion varies from state to state, most agree that a project is substantially complete when it can be used for its intended purpose.

On Friday, January 7, 2022, the Supreme Court heard oral arguments regarding OSHA's ETS and CMS rule on workplace vaccinations. For now, there is no administrative stay or final decision from SCOTUS on the fate of the ETS or CMS rule.

A decision made by the Sixth Circuit on December 17, 2021 means that, at least for the time being, OSHA is cleared to move forward with enforcing the ETS against large employers as originally drafted. 

Koley Jessen has continued to monitor the situation regarding the legal challenges to the Centers for Medicare & Medicaid Services (“CMS”) vaccine mandate. Earlier this month two U.S. Circuit Courts provided key rulings to this ongoing legal battle.

As of December 2, 2021, two out of the three vaccine mandates called for by President Biden have been blocked nationwide, and the third has been enjoined in three states.

With the goal of imposing greater consumer protections to address surprise medical billing, the No Surprises Act was signed into law as part of the 2021 Consolidated Appropriations Act.

Arbitration provisions in contracts are sometimes enforceable even when one or both parties do not sign the contract. As a result, it is crucial that contractors and subcontractors know whether their contracts—signed or unsigned—contain arbitration provisions.

This article examines legal objections that are commonly made during a Will contest.

On Friday, November 12, 2021, a panel of the United States Court of Appeals for the Fifth Circuit extended its stay on the enforcement of the ETS “until further court order.” The Sixth Circuit now has the authority to review and either lift or uphold the Fifth Circuit’s stay.

Delaware Courts recently held that buyers and sellers cannot rely on contractual limitations (e.g., indemnification limitations, like survival clauses) that are obtained as a result of fraud. Full disclosure and precise drafting can mitigate this risk.

This article, which is current as of November 10, 2021, summarizes some of the major tax provisions included in the revised proposed Build Back Better Act legislation.

Beginning November 8, 2021, fully vaccinated foreign nationals may enter the United States by air, subject to proof of vaccination and a negative COVID-19 test. For purposes of entry into the United States, the U.S. Centers for Disease Control (“CDC”) has said it will accept any vaccine authorized for use by U.S. regulators and the World Health Organization (“WHO”), including those listed on the WHO Emergency Use Listing and mixed-dose vaccinations.

On November 5, 2021, the Department of Health and Human Services (HHS) and Centers for Medicare & Medicaid Services (CMS) published the highly anticipated interim final rule requiring vaccination of Staff members against COVID-19 for various health care providers and suppliers.

Yesterday, the Occupational Safety and Health Administration (“OSHA”) released its highly anticipated Emergency Temporary Standard (“ETS”) regarding mandatory vaccines for employees of “large employers,” or those with 100 or more employees.

A concise explanation of the basic rules and issues that impact the enforceability of employment-based restrictive covenants under Nebraska law.

While the Occupational Safety and Health Administration Emergency Temporary Standards have yet to be released, the Safer Federal Workforce Task Force recently released guidance on the Executive Order on vaccine mandates for federal contractors. This guidance provides greater detail regarding the scope of the Executive Order, what contracts are covered, and the timeline for federal contractors to comply. 

A Q&A guide to state laws and customs on managing commercial real estate leases in Nebraska.

As administrators geared up for the start of the 2021-22 school year, school districts had until  June 30, 2021 to comply with Nebraska’s new Anti-Grooming law which requires Nebraska schools to implement specific policies addressing appropriate relationships between school employees (including teachers, coaches, practicum students, and student teachers) and their students. 

As litigants and courts continue to grapple with the impact of COVID-19 and its variants, the rise of technology and remote attendance have enhanced the risk of sanctions.

Contractors are sometimes faced with a subcontractor’s failure to properly perform a contract and wish to terminate the subcontractor from a project. While hiring and firing “at will” is a generally accepted practice for people who work directly for you, general contractors need to be aware that they may not be able to terminate a subcontractor from a project as easily as they could one of their own employees.   

On September 13, 2021, the House Ways and Means Committee released proposed legislation that includes a host of tax increases focused on high-income individuals and corporations. Given the far-reaching impact of the proposed changes, it is important to understand the current proposal. 

An exploration of the benefits and effectiveness of mandated mediation and why despite its controversial nature, it is an effective dispute-resolution tool.

President Biden announced a new plan to increase the number of vaccinated Americans during his September 9, 2021 press conference. The President's plan applies to large employers, federal contractors, and health care workers in an attempt to tackle the spread of COVID-19 by vaccinating America's workforce.

Craig Benson and Nick O'Brien discuss Charitable Remainder Trusts and tax-efficient strategies using CRTs in the July/August 2021 issue of the Nebraska CPA

On July 19, 2021, the Office of the California Attorney General provided the public with information about enforcement practices related to the California Consumer Privacy Act of 2018 (“CCPA”).

To comply with the Colorado Privacy Act, businesses will need to provide consumers with clear privacy notices and conduct data protection assessments for any personal data processing that presents a heightened risk of harm to consumers.

A discussion of the growing trend of physicians moving out of independent practice, focusing on the reasons behind the trend and identifying ways that physicians can still remain independent.

For both the homeowner and homebuilder, it is important to understand when the clock may run out to file a claim for any construction issues. This “clock” is referred to as the “statute of limitations.” All lawsuits must be filed before the statute of limitations period runs out, because once it does, there is almost nothing that can be done to recover damages.

On June 10, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration released an emergency temporary standard to protect healthcare workers who continue to risk workplace exposures in order serve those who may have COVID-19. 

On June 4, 2021, the European Commission issued long-awaited new versions of the Standard Contractual Clauses (“SCCs”) for businesses to utilize in arranging cross-border data transfers between the United States and countries in Europe.

Jeff Schaffart and Nick Bjornson review two tax proposals that could significantly change the transfer tax system in our country and why taxpayers may wish to consider accelerating capital gains on assets they will retain.

If you own or manage a business, you may find yourself in the position of being served with court documents asking for information on one of your employee’s wages.

The CFPB recently approved a new rule which requires landlords who wish to evict a tenant for non-payment of rent to send a notice informing the tenant of the additional protections that are in place from the CDC and CFPB. All residential landlords should be aware and implement procedures to ensure compliance with this new rule.

The difference between a “design specification” and a “performance specification” is a commonly overlooked nuance that contractors must take into account as they attempt to manage their risk.

The prevention and reduction of accidental releases at industrial and chemical facilities remains a high priority for the U.S. Environmental Protection Agency. A recent settlement over improper ammonia storage illustrates their compliance focus and the importance of facilities’ obligation to submit and implement a risk management plan (“RMP”).

Businesses need to do very little to create a trademark. However, businesses need to put in a little more effort to protect a trademark. Here is what every business should know about trademarks and registration.

As society returns to “normal,” employers should evaluate the potential tax consequences of permitting or requiring employees who live in other states to work from home.

A Q&A guide to commercial real estate laws for owners and purchasers in Nebraska.

As every experienced general contractor and subcontractor knows, getting paid for your work is sometimes more difficult than the work you were contracted to perform. Part of this difficulty can result from the detailed payment terms in the project’s contract.

Another state has enacted a consumer data privacy act with extraterritorial implications. The Virginia Consumer Data Protection Act (“CDPA”) was signed into law by Governor Ralph Northam on March 2, 2021, making Virginia the second state to pass a comprehensive state data privacy law after California.

On March 1, 2021, the Ecodesign Directive entered into force across the European Union. This Directive implements certain “right to repair” legislation, which sets out rules on reparability, availability of spare parts and access to certain product maintenance information.

As the COVID-19 vaccines become more readily available, many employers are considering offering incentive programs that offer additional paid time off, gift cards, etc. in order to motivate employees to get vaccinated.

Although the federal income tax treatment of PPP loan forgiveness and the deductibility of covered expenses is now settled, state income tax treatment of these two issues has not been fully resolved. How is Nebraska handling the treatment?

The D.C. Circuit Court of Appeals announced its decision January 19, 2021 to vacate the Affordable Clean Energy (ACE) Rule that was implemented during the Trump administration. The ACE Rule repealed and replaced the Obama administration’s Clean Power Plan (CPP) Rule to regulate power plants’ emissions of greenhouse gases.

The Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act (the “Economic Aid Act”) permits certain eligible individuals or entities to apply for a grant to help such individuals or entities affected by COVID-19 (“SVO Grant”). This article addresses certain provisions of the Economic Aid Act governing SVO Grants.  

A Q&A guide to commercial real estate leasing law for landlords and tenants in Nebraska.

Apple recently announced new requirements for mobile application privacy disclosures that are meant to provide increased privacy protections for consumers. App developers providing misleading or false information as a part of these disclosures risk liability under states’ unfair and deceptive acts and practices laws as well as scrutiny by federal agencies such as the Federal Trade Commission.