Publications Archive

Attorney Generals from Nebraska, South Dakota, Missouri, Oklahoma, Texas, Arkansas, and Louisiana collectively filed an amicus brief in an Eighth Circuit Court of Appeals case, Horton v. Midwest Geriatric Mgmt., LLC, requesting that the Eighth Circuit refrain from interpreting Title VII of the Civil Rights Act of 1964 (“Title VII”) to protect sexual orientation discrimination, as the Seventh and Second Circuits have done.

Last month, Senators Elizabeth Warren (D-Massachusetts) and Cory Gardner (R-Colorado) proposed highly anticipated bipartisan legislation that would allow individual states to determine their own approaches to marijuana within their borders.

This article briefly discusses four new laws that took effect on July 1, 2018. 

The Tax Cuts and Jobs Act was signed into law on December 22, 2017, doubling the amount a taxpayer may leave to his or her beneficiaries without paying the federal estate tax. However, this is one of the individual tax changes in the new law which “sunset” on December 31, 2025.

The Supreme Court announced its ruling today in the biggest sales tax case in 26 years. The ruling affects remote and online shopping by removing a limitation on a state’s ability to enforce its collection and remittance statutes against retailers who do not have a physical presence in the state.

The “Tax Cuts and Jobs Act” (the “Act”)[1] amended Section 168(k) of the Internal Revenue Code to allow taxpayers to immediately depreciate or expense 100% of the cost of new and acquired qualified property[2] placed in service between September 27, 2017 and January 1, 2023.[3] In addition to increasing “bonus depreciation” from 50% to 100%, the Act makes “acquired property” eligible for immediate expensing.

Transactions for the purchase and sale of businesses are rarely all cash deals. No matter the transaction structure, the use of financing to consummate the purchase creates a new dimension and layers of complexity requiring additional scrutiny and analysis by a discerning seller (or its principals). This article highlights some of the key considerations in such instances.

Consistent with Fiscal Year (“FY”) 2017, the Secretaries of Labor and Homeland Security have announced that up to an additional 15,000 H-2B visas are available for FY 2018 on a first-come, first-served basis for those businesses that attest, under penalty of perjury, that they are likely to suffer irreparable harm, i.e., suffer a permanent and severe financial loss, if they do not receive all of the workers under the cap increase.

The Supreme Court’s Epic decision undoubtedly favors employers who currently have, or who in the future may have, a mandatory arbitration program. However, despite what some media outlets and commentators might say in the wake of the Epic decision, employers should carefully consider a number of factors before deciding to roll out such a program. 

The U.S. Citizenship and Immigration Services (“USCIS”) has announced that it completed data entry for all Fiscal Year 2019 H-1B cap-subject petitions selected in the lottery and now will begin returning all H-1B cap-subject petitions that were not selected in the lottery.

Is your ERISA plan bonded or insured? Is there a difference? Why does it matter? This article addresses a compliance requirement that is often misunderstood–the fidelity bond requirement of ERISA and its relationship to fiduciary liability insurance.

Price maintenance is an important part of many companies’ strategies, especially those attempting to promote and brand themselves as a producer of high quality goods. While there are methods to impose certain resale prices, organizations have determined that enforcing MAP policies is an effective way to reinforce a company brand at a lower risk than attempting to navigate the current legal landscape of RPM agreements. However, MAP policies still require careful drafting, and a thorough understanding of the practical restraints it may be imposing, as each organization’s circumstances are different. 

The U.S. Citizenship and Immigration Services (“USCIS”) has announced that it conducted a lottery on April 11, 2018, to randomly select enough H-1B cap-subject petitions to exhaust the H-1B visas available for Fiscal Year 2019.

Negotiating the terms and conditions of a commercial real estate lease can be a laborious process. Depending on the nature of the lease, the parties involved and the proposed use of the property, there may be only one or two major points to be negotiated, or there could be several.

In the digital age, it is the nightmare scenario for any business: the dreaded data breach. Every other week, it seems as though another high-profile company has fallen victim to cyber criminals and must issue a sweeping disclosure notifying customers and clients that their personal data may be at risk for improper use.

Smart gift planning includes combining a donor’s charitable intent with income tax efficiency. As a donor, you want to assure you are maximizing your gifts to your favorite charities, while also maximizing your personal income tax benefits. Gifts of long-term appreciated assets can achieve both objectives.

On March 23, 2018, President Trump signed into law the Consolidated Appropriations Act, 2018 (H.R. 1625) to fund the government until September 30, 2018. Included within the 878 page law is a paragraph authorizing the Secretary of Homeland Security, after consultation with the Secretary of Labor, to issue additional H-2B visas above the 33,000 limit for the second half of Fiscal Year 2018.

As employers are well aware, the Fiscal Year 2019 H-1B cap season is in full gear. In order to be considered for one of the 85,000 coveted H-1B visas, employers must file their H-1B cap petitions during the first five business days of April (April 2nd – April 6th, 2018) requesting that employment commence on October 1, 2018.

Section 1061 of the Internal Revenue Code, added by the “Tax Cuts and Jobs Act” (hereafter simply referred to as the “Act”)[1], imposes a new three-year holding period for gains derived by a partnership that are passed through to the holder of a carried interest (or gains from the disposition of a carried interest) to qualify as long-term capital gains. This change is effective for any allocations of income or sales of carried interests on or after January 1, 2018, and it applies to newly-granted carried interests and existing carried interests alike.

Recent updates to the Department of Health and Human Services Office of Inspector General (OIG) "Work Plan" indicate that OIG has taken an interest in the utilization of certain off-the-shelf orthotic devices, and will therefore be paying closer attention to Medicare/Medicaid reimbursements of those products in 2018.

The Office of Inspector General ("OIG") recently published Advisory Opinion No. 17-03 reminding us that DMEPOS suppliers that have "consignment closet" arrangements with health care providers should bear in mind that failing to charge for products that are damaged, lost, or stolen after being delivered to the closet under the control of the provider may be treated as remuneration for purposes of the anti-kickback statute.

The U.S. Citizenship and Immigration Services (“USCIS”) announced today, March 1st, that it conducted a lottery yesterday, February 28th, to randomly select enough H-2B cap-subject petitions to exhaust the 33,000 H-2B visas that are available for the second half of Fiscal Year 2018.

The Business and Labor Committee of the Nebraska Unicameral heard testimony this month on a number of bills that would have various implications for Nebraska employers if ultimately signed into law. The following is a synopsis of the legislation presently before the Committee. To date, the Committee has not taken action on the bills outlined below or designated any as priority.

The Department of Labor issued regulations that revise the ERISA claims procedure regulations for employee benefit plans that provide disability benefits with an effective date of April 1, 2018.

If you’ve made the decision to separate from or divorce your spouse, there are many things that you need to address, and estate planning needs to be one of your priorities.

It is not uncommon for a related or “friendly” party to desire to make a loan at a lower interest rate than what is available in an arms-length transaction on the open market.

As the composition of the National Labor Relations Board (the "Board") shifts due to vacancies that have been filled by the new Presidential administration, there has been a noticeable trend towards more employer-friendly rulings from the Board. On December 14, 2017, this trend continued when the Board expressly overruled its August 27, 2015 decision in Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery, 362 NLRB 186 (2015), which had established a new standard for determining joint employer status. In overruling Browning-Ferris, the Board stated that it was returning to the joint employer standard that had been in place for nearly thirty (30) years before the Browning-Ferris decision.

On January 26, 2018, the Federal Trade Commission (“FTC”) announced the annual changes to the Hart-Scott-Rodino Antitrust Improvement Act of 1976 (the “HSR Act”) pre-merger notification thresholds (see attached Federal Register publication). These changes will become effective February 28, 2018. However, please note that if a transaction is entered into prior to February 28, 2018, the new thresholds will still apply to the transaction as long as it closes on or after February 28, 2018

H-1B season is just around the corner, and as it is expected that the demand for H-1B visas will remain strong this year as in years past, employers desiring to be considered in Fiscal Year 2019’s H-1B lottery are encouraged to start the process now. U.S. Citizenship and Immigration Services (“USCIS”) will begin accepting H-1B petitions on Monday, April 2, 2018.

As H-2B employers are well aware, January 1, 2018, was the earliest date on which an employer seeking a start date of April 1, 2018, could file an H-2B application requesting temporary labor certification. Yesterday, on January 3, the U.S. Department of Labor (“DOL”) issued a public service announcement to alert employers and other interested stakeholders about the high volume of applications received on January 1. Specifically, the DOL received approximately 4,500 applications covering more than 81,600 worker positions.

As the calendar turns to 2018, a renewed focus by employers on sexual harassment training practices seems prudent given all that transpired in 2017. Have you taken a fresh look at your policies and training?

As your family grows to include adult children, their spouses, and your grandchildren, you should evaluate whether your estate plan provides for each beneficiary in your life in a way that meets your objectives.

The Tax Cuts and Jobs Act is the largest tax overhaul since the Tax Reform Act of 1986, and there are numerous and significant changes. The changes generally go into effect for tax years beginning after December 31, 2017, and most changes affecting individuals sunset on December 31, 2025. Lawmakers have promised to extend the provisions before the expiration date.

Businesses taxed as partnerships should consider amending their applicable partnership agreements or limited liability company operating agreements to address these new rules and avoid unintended consequences in the event of an IRS audit, including potentially significant and distorted tax consequences for owners.  

Early in the morning on Saturday, December 2, the Senate voted to pass its version of the Tax Cuts and Jobs Act, after the Senate Finance Committee finished its markup session earlier in the week and the Senate Committee on the Budget approved the bill on Wednesday, November 29.

Several amendments were made to the Act up until shortly before the vote was held, and many of the amendments were included as handwritten changes. As a result of the changes and late amendments, we are still working to analyze the final details of the Act that was passed.

In light of the Trump Administration’s focus on immigration enforcement, employers need to be aware of what rights and responsibilities they have when ICE arrives at the worksite. Read our latest Employment NewsFlash to learn how to be prepared.

What happened in Tax Reform this week? Our latest update will walk you through the latest developments in Washington, D.C. and how they may impact you and your business. 

What changes did the House Ways and Means Committee have to the original version of the Tax Cuts and Job Act? What are the policy highlights from the Senate Finance Committee? Our latest update will provide you with an overview.

The House of Representatives unveiled their Tax Reform Bill on November 2, a major step towards tax reform. The Reform Bill will go back to the Ways and Means Committee for editing before it is officially proposed on Monday, November 6. The Reform Bill follows the “Big Six Tax Proposal” released in September in most areas but deviates in others. More importantly, the Reform Bill contains many of the details that were left out of the September proposal. Many of the points in the proposal have been debated over the last month and some compromises and changes were made.

Retirement – one of the most enjoyable milestones in life, especially if you reach it with good health and enough savings. While there are many things to think about, it is also a good time to refresh your estate plan. When did you last review your beneficiary designations? Do you know the amount of taxes your retirement accounts are going to generate and when?

Good news for family businesses: in a report issued on October 2, 2017, the Treasury Department recommended the withdrawal of previously proposed 2704 regulations. These regulations could have had a detrimental impact to wealth transfer and business succession planning for family businesses that rely on valuation discounts for tax efficiency and the ability to continue the family business.  

Title VII of the Civil Rights Act of 1964 ("Title VII") is a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. We refer to these characteristics as "protected classes." Title VII applies to employers with 15 or more employees, including federal, state, and local governments. Title VII does not reference sexual harassment as a form of discrimination but in 1986, the U.S. Supreme Court ruled that sexual harassment was another form of discrimination because of "sex" and thus prohibited under Title VII. Since then, employees have brought a range of cases alleging more theories of discrimination because of sex.

Tax reform is once again at the forefront of the Washington D.C. political agenda.  On September 27, 2017, the framework was released that will serve as the blueprint that the Whitehouse and GOP Congressional leadership intend to guide tax reform legislation this year.

The stated goals of the Framework are to (1) simplify the tax code, (2) lower the tax burden on working Americans, (3) level the playing field for American business and workers on a global setting, and (4) to repatriate offshore dollars to reinvest in the American economy. While the Big Six Framework is intended to create more momentum for federal tax reform this year, the proposal leaves the detailed drafting to the Congressional tax-writing committees. There is likely to be considerable debate and controversy related to some of the details and enactment of meaningful tax reform in 2017 is far from certain.

What does this all mean? Read our article to find out more about the potential changes. 

Mergers & Acquisitions Magazine recently published a supplement on law firms and Mike Hupp, President of Koley Jessen and Head of M&A, provided insight on trends he has seen in the deal-making environment and in private equity industry. He also shares ideas on how attorneys can add value not only on the economics and negotiating of deals, but also in sourcing deals. 

This is a survey of certain key deal terms in private equity co-investments made by limited partners in lower middle market transactions. Our review of lower middle market transactions indicates that while the prevalent co-investment structures are generally consistent across the lower middle market and the traditional middle market, co-investment trends and terms in the lower middle market tend to diverge from those in the general private equity market. Data points included in this review may be a snapshot through a straw, so to speak, but nonetheless a helpful data set that will hopefully prompt a more robust study in the future that focuses on lower middle market transactions and provides a better vantage point for practitioners to follow.

The impact of the controversial “waters of the United States” or “WOTUS” rule is very significant to many business sectors because any water body that falls under the jurisdiction of the Clean Water Act may require a permit or other restrictions before the water body is modified or otherwise impacted. The new EPA Administration has given every indication that it will closely review suggestions on how to craft a new definition so comments and direction to the agencies will be critical. 

What do buyers need to know about Representations and Warranties Insurance ("RWI")? Koley Jessen attorneys provide a practical guide to the RWI process to help buyers understand what to expect and how to get the best possible policy.

Although several bills have been introduced in recent months to reform various aspects of the immigration system, Congress has yet to pass any of the bills. Nevertheless, there have been a plethora of changes since the new administration took office this year.

As of August 1, 2017, the Occupational and Safety Health Administration’s (OSHA) new electronic injury tracking portal (the “Injury Tracking Application” or “ITA”) is available. Information on your 2016 Form 300A needs to be submitted electronically by December 1, 2017.