Labor and Employment
Take Notice: Required Postings
Recently, I was struck yet again by the huge number of laws requiring employers to provide notice to their employees of employment-related laws. Often laws require employers to provide notices over and over, too. For instance, Washington DC has a new law banning almost all non-compete provisions (which takes effect October 1). Not only do employers with one or more employees have to be aware that they may no longer ask their employees to sign non-compete agreements, but they must also remember to provide notice 1) ninety days after the law becomes effective (so they have to track that, too); 2) seven days after hire, and 3) within 14 calendar days of a written request for the text of the law. Who knew? I had to sit down and research this – and I’m an employment lawyer. From this example alone, it’s clear that keeping up with notification requirements is a pain. And it’s extremely burdensome if the company is operating in multiple states. All the remote working has increased this administrative burden on employers. Remember, the employment laws of the state in which employees are working are those applicable to them. I suggest that management – at those employers without HR personnel – take a look at the websites of each state as a beginning point. All of the notices are usually available there in a PDF to be posted. Caution: it seems even the Departments of Labor in some states can’t keep up with their own lawmaking because I’ve noticed some missing on their own websites. It’s a good starting place and also an education in laws applicable, as you’ll see when you read the notices. And, of course, don’t forget your federal law notices, either (DOL.gov)! Post in all brick and mortar sites and email notices to remote employees. Review once per year
August 24, 2022
Family Law
Should I File a Joint Tax Return with My Separated Spouse?
When it comes time to file tax returns, those of our clients who are separated but not yet divorced often ask our opinion. As with many issues, there are some benefits to filing a joint return. However, there may also be unexpected consequences. When spouses file jointly, they are each responsible for all of the reported information. Each spouse can be held responsible for tax liability, which can include interest and penalties. One concern, therefore, is whether the other spouse has had adequate withholding or has paid their quarterly tax obligation in full and on time. We do not recommend a client file jointly if they are concerned their spouse has not been honest about income or deductions. On the other hand, there are significant benefits of filing jointly, such as lower tax brackets. Filing jointly rather than filing married filing separately can save money. You may qualify for filing as head of household. You may need guidance from an independent accountant or a competent family law attorney. Concerns may include who can get certain deductions, how to divide resulting tax liability, and how a refund may be divided.
August 22, 2022
Healthcare
California’s New Scope of Practice Law for Nurse Practitioners – Part One
The California Board of Nursing states that a new California law, AB-890 expands the scope of practice rules for nurse practitioners. The law is effective January 1, 2023. To take advantage of the new law, nurses must meet specific California requirements. Nurse practitioners who do meet the requirements may be able to practice “independently,” in some cases. Nurses who do not meet the requirements must comply with “Standardized Procedures, the mechanism for Nurse Practitioners to perform functions which would be considered the practice of medicine.” What were the standardized procedures that nurse practitioners needed to meet prior to AB 890? The standardized procedures are those set forth in California law. Standardized procedures mean either of the following: “(1) Policies and protocols developed by a health facility licensed pursuant to Chapter 2 (commencing with Section 1250) of Division 2 of the Health and Safety Code through collaboration among administrators and health professionals including physicians and nurses. (2) Policies and protocols developed through collaboration among administrators and health professionals, including physicians and nurses, by an organized health care system which is not a health facility licensed pursuant to Chapter 2 (commencing with Section 1250) of Division 2 of the Health and Safety Code. The policies and protocols shall be subject to any guidelines for standardized procedures that the Division of Licensing of the Medical Board of California and the Board of Registered Nursing may jointly promulgate. If promulgated, the guidelines shall be administered by the Board of Registered Nursing.” What duties do nurses perform? Nursing as defined by the statute means: “Those functions, including basic health care, that help people cope with difficulties in daily living that are associated with their actual or potential health or illness problems or the treatment thereof, and that require a substantial amount of scientific knowledge or technical skill, including all of the following: (1) Direct and indirect patient care services that ensure the safety, comfort, personal hygiene, and protection of patients; and the performance of disease prevention and restorative measures. (2) Direct and indirect patient care services, including, but not limited to, the administration of medications and therapeutic agents, necessary to implement a treatment, disease prevention, or rehabilitative regimen ordered by and within the scope of licensure of a physician, dentist, podiatrist, or clinical psychologist, as defined by Section 1316.5 of the Health and Safety Code. (3) The performance of skin tests, immunization techniques, and the withdrawal of human blood from veins and arteries. (4) Observation of signs and symptoms of illness, reactions to treatment, general behavior, or general physical condition, and (A) determination of whether the signs, symptoms, reactions, behavior, or general appearance exhibit abnormal characteristics, and (B) implementation, based on observed abnormalities, of appropriate reporting, or referral, or standardized procedures, or changes in treatment regimen in accordance with standardized procedures, or the initiation of emergency procedures.” Before the passage of the new law nurse practitioners (NPs) could also: Order durable medical equipment Certify if a patient is disabled Approve or modify a plan of treatment or plan of home health care Furnish drugs or devices “consistent with the practitioner’s educational preparation or for which clinical competency has been established and maintained,” under physician and surgeon supervision (§ 2836.1). Specific supervision requirements include: “collaboration on the development of the standardized procedure, approval of the standardized procedure, and availability by telephonic contact at the time of patient examination by the nurse practitioner.” Furnish or order buprenorphine. Why was the AB 890 legislation enacted? According to the California Association of Long Term Care Medicine, the California NP scope of practice law was enacted to help mitigate COVID-19. AB90 was one of many bills introduced nationwide to help healthcare providers respond to the pandemic. Other COVID bills passed in California included bills to: Provide minimum personal protective equipment (PPE) requirements Expand the ability of pharmacists to give vaccines for COVID-19 Create statewide peer support specialist standards AB 890 is still awaiting new rules which will be drafted by the California Board of Registered Nursing (BRN). What did Assembly Bill (AB) 90 do? The new law: Established Article 8.5 in the Nursing Practice Act – that provides when and how NPs can practice without the use of standardized procedures (sections 2837.103 and 2837.104). Established a Nurse Practitioner Advisory Committee within the Board of Registered Nursing. This committee will advise the board about nurse practitioner issues including disciplinary issues. “Extended the prohibitions of section 650.01 to NPs practicing independently under section 2837.103 or 2837.104 – which “Makes it a misdemeanor for specified healing arts practitioners to refer a patient to another practitioner/entity for certain services, if the licensee or their immediate family has a financial interest with the person/entity that receives the referral. In this respect, the AB 890 is akin to Stark Law.” Extends “the requirement of section 805 to NPs practicing independently under section 2837.103 or 2837.104. “Section 805 requires certain peer review organizations to file an “805 report” with the applicable healing arts board, providing information about adverse actions taken against certain healing arts licensees for medical disciplinary cause.” Directs the California Board of Registered Nursing to “work with the DCA Office of Professional Examination Services on an occupational analysis, an assessment of the competencies tested by the national NP exam, and a determination of whether a supplemental exam is necessary to validate competency for independent practice.” Assigns other duties to the California Board of Registered Nursing to implement the new law. The First Steps to Understanding Stark Law In today’s video, we will be introducing you to Stark Law. What are the nurse practitioner requirements to be eligible to practice independently? AB 890 essentially provides two ways for nurse practitioners to practice without standard procedures and physician oversight: Setting specific practices This part of the bill is effective in 2021 – only after the BRN creates the necessary regulations. The key provisions are that the: NP passes a national NP board certification examination. “The Department of Consumer Affairs, Office of Professional Examination Services (OPES) will complete an occupational analysis of NPs performing the functions in the scope of practice statute and will possibly create an exam to cover aspects of the scope of practice statute if the national NP board certification exams do not cover them.” The NP must be properly certified by “a national certifying body accredited by the National Commission for Certifying Agencies or the American Board of Nursing Specialties and those national certifications need to be recognized by the BRN.” The nurse practitioner must provide documentation to show their training was “consistent with current BRN standards and any applicable regulations as they specifically relate to requirements for clinical practice hours. Online educational programs that do not include mandatory clinical hours shall not meet this requirement in the new law.” The NP must finish a California transition-to-practice (TTP) requirement of three full-time equivalent years or 4600 hours – according to BRN regulations. “To expand their practice outside of these settings: “a nurse practitioner must practice within the limits of their knowledge, experience, and national certification and have practiced in good standing for at least three (3) years after meeting the requirements to transition to practice.” “Nurse practitioners who practice outside of the limited settings listed above “shall consult and collaborate with other healing arts providers based on the clinical condition of the patient to whom health care is provided and establish a plan for referral of complex medical cases and emergencies to a physician and surgeon or other appropriate healing arts providers.” NPs who complete the above steps and work at one of the following six settings/organizations can, pursuant to AB 90, practice without standardized procedures or physician supervision: Clinics as defined by the Health and Safety Code A health facility as defined by the Health and Safety Code – with exceptions for correctional treatment centers, state hospitals, and other types of facilities. A medical group practice, including a professional medical corporation… another form of corporation controlled by physicians and surgeons, a medical partnership, a medical foundation exempt from licensure, or another lawfully organized group of physicians and surgeons that provides health care services. A home health agency. A hospice Each of these settings is defined in more detail in the California statutes. In response to the COVID pandemic, California passed a law that makes it easier for nurse practitioners to treat patients. The law provides that nurse practitioners who complete specific requirements can practice in a medical group practice and other settings – without the requirement to follow standardized nursing procedures. 7 Reasons Why Nurses Lose Their License Registered nurses, nurse practitioners, nurse specialists, and all nurses need to understand HIPAA, fee-splitting and revenue laws, a doctor’s duty of supervision, and other legal issues that […] Did COVID Relax Telemedicine Laws? In today’s video, we discuss whether COVID relaxed telemedicine laws. Nurse practitioners, medical practices, and other health providers who work with nurse practitioners should contact Cohen Healthcare Law Group, PC to review how California’s new AB 890 expands the practice of nursing practitioners Our experienced healthcare attorneys advise nurse practitioners, doctors, and others about healthcare compliance laws and regulations. Contact our healthcare law and FDA attorneys for legal advice relevant to your healthcare venture.
August 22, 2022
Tax
Harvesting Tax Credits Is Legitimate Business for Tax Purposes
If the sole purpose of a partnership is to harvest tax credits, is that a legitimate business for tax purposes? According to the Tax Court and the D.C. Circuit Court of Appeals, yes. In Refined Coal, LLC. V. Commissioner, No. 20-1015, (D.C. Cir. August 5, 2022), the answer is a resounding yes. But first, some background. In 2004, to stimulate the production of refined coal, which produces fewer emissions when burned, Congress created a tax credit for the production and sale of refined coal. But there was a catch – a producer could only receive the credit if it sold refined coal for 50% more than the market value of unrefined coal. Well, surprise, surprise, this went nowhere, so in 2008 Congress removed the 50% restriction and lo-and-behold, it worked. To take advantage of this change (and resulting tax credit), AJG Coal, Inc. launched a coal-refining facility at a power plant on Santee Cooper in South Carolina. Under the agreement, AJG, through a subsidiary, signed a lease that allowed it to build a coal refining facility inside the power plant. Next, the subsidiary entered into an agreement with the power plant to buy unrefined coal from the power plant, refine it, and sell it back to the power plant at $.75 less per ton. Finally, the sub entered an agreement with its parent to license the coal-refining technology. Wait a minute; they are reselling refined coal to the company from which they bought it for less money!? How could this ever make good business sense? The answer? Tax credits. The only possible way this was only profitable was through the application of the tax credit for refined coal. And we are not talking peanuts here. AJG projected that the sub would realize a $140 million after-tax profit over a ten-year period. Sadly, profits were much less than projected. In fact, the project had several lengthy shutdowns. Finally, in 2012, Santee shut down the coal-refining operation because of insufficient demand for local power, which caused two of the partners to suffer $ 2.9 million and $700,000 after-tax losses, which they wrote off on their respective federal income tax returns. Not so fast, the IRS said. To be a legitimate business, i.e., to write off expenses and losses, you must have a profit motive, and operating a business solely to harvest tax credits do not count, so the partnership was not a bona fide partnership; therefore, the losses are not deductible. Au contraire mon frère said the Tax Court. Yes, harvesting tax credits is a legitimate business purpose, and if the business would not be profitable, but for the tax credits, that is okay. It is still a legitimate business. Not content with the Tax Court, the Service appealed to the D.C. Circuit Court. The D.C. Circuit Court noted that due to special benefits the tax code affords partnerships, there is the ever-present temptation for an entity to appear as a partnership, even if it is not. The Court noted there are two requirements to be a partnership. The first requirement is the partners must intend to carry-on business as a partnership, i.e., the business must be undertaken for profit or other legitimate nontax purposes. Factors examined include the duration of the partnership and the business rationale for forming a partnership. The Court observed, “Taxpayers that structure their dealing to receive tax benefits afforded by statute are entitled to those benefits, no matter their subjective motivations.” The second requirement is the partners must intend to share in the profits or losses or both; that is, the partners’ interests must have the prevailing character of equity. If a partner is insulated from the upside and downside risks of the business, that partner looks more like a secured creditor, not a true partner. Applying these factors, the D.C. Circuit Court found the partnership was a true partnership and dismissed the Service’s objection that the partnership had no pre-tax profit motive and, therefore, was not a true partnership. The Court noted a partnership’s pursuit of after-tax profit, even one only made possible by tax credits, is a legitimate business activity. Finally, the Court held that even transactions that are only profitable on a post-tax basis can still have a nontax business purpose. The decision by the D.C. Circuit Court was unanimous. So, where does that leave us? Consider for a minute all the tax credits provided by the tax code. The Refined Coal decision confirms and affirms that a partnership organized solely to harvest tax credits is a legitimate business for tax purposes. The question is, what tax credits can your business harvest? Offit/Kurman PA counsels clients on business matters, including the formation and structuring of entities to maximize tax savings and tax credits. The views expressed herein are solely those of the author, are not intended as, and do not constitute, legal or tax advice.
August 19, 2022
Tax
Pass-Through Entities in Bankruptcy-Beware of Phantom Income
Recently I discussed the tax issues created by the inadvertent inclusion of partnership tax provisions in an operating agreement for a LLC taxed as an S-corp. Today we have a different problem – not following what the operating says regarding dissolution and the potentially serious adverse tax consequences that can create. This is a bankruptcy case with important income tax lessons for members of pass-through entities. LeClairRyan PLLC was a law firm in Virginia that was taxed as an S-corporation for federal and state income tax purposes. In 2019 LeClairRyan filed bankruptcy (initially Chapter 11 (reorganization) but converted to Chapter 7 (liquidation). On July 29, 2019, the firm voted to dissolve. On July 31, 2019, Mr. LeClair terminated his employment with the firm. Three years later, he was in bankruptcy court, asking the court to order the bankruptcy trustee to remove his name from the list of equity security holders (members of the law firm) on the ground he had terminated his interest. Under Virginia’s LLC act, an LLC “is bound by its operating agreement, which regulates the conduct of its business and the relations of its members.” Most, if not all, state LLC acts contain similar provisions. Here, the law firm’s operating agreement provided that a member’s interest terminated on the date the member’s employment with the firm ceased. For Mr. LeClair, this was July 31, 2019. But the firm’s operating agreement also provided that as long as a member-owned shares (instead of a membership interest, the law firm used common and preferred shares), no member could withdraw prior to dissolution and winding up of the [law firm]. Because the law firm voted to dissolve on July 29, 2019, two days before Mr. LeClair attempted to terminate his employment, the bankruptcy court ruled Mr. LeClair’s termination was ineffective based on this provision of the operating agreement. Had it been the other way around, that is, had Mr. LeClair terminated his employment before the firm voted to dissolve, then he would not have been a member as of the date of dissolution. So why was Mr. LeClair trying to do this, and what difference does all this really make? The reason: Taxes. The difference it makes: Potentially a big one, and here’s why. Under the Bankruptcy Code, when an individual files bankruptcy, the bankruptcy estate is its own tax entity, meaning it, not the debtor (the individual who filed bankruptcy), is responsible for paying any taxes associated with the income from the bankruptcy estate. See IRC § 1398. However, this rule does not apply to corporations or partnerships. IRC § 1399. In the case of a C-corporation, this is no big deal because C-corporations are separate tax-paying entities anyway. But…where a pass-through entity (PTE) is involved (entity taxed as an S-corporation or partnership)…it can be a big (taxable) problem for the partners/shareholders/members. Recall, with PTEs, items of profit and loss flow through to and are taxed at the shareholder/member/partner level. In bankruptcy, if the PTE has assets that continue to produce income, the bankruptcy estate–not the shareholders/members/partners–gets the income, but and this is a BIG BUT because the income flows through to the individual shareholders/members/partners, they, not the PTE, must pay the taxes associate with that income. Ouch!! So, coming back to Mr. LeClair’s case, that meant that as the bankruptcy trustee collected the law firm’s receivables (which are income), the bankruptcy trustee got to keep the money to pay the firm’s creditors, but for tax purposes, the income was allocated to the members of the now bankrupt firm who had to pay income taxes on money they never received. I know what some of you are thinking. Would the result have been different if the firm had made an election to pay tax at the entity level instead of at the shareholder/member/partner level? After all, Virginia has adopted pass-through entity tax (PTET) as a SALT workaround. Highly doubtful. PTET legislation, at least in Virginia as well as most states, does not create or define a property interest (IRS looks to state law to determine whether a taxpayer has a property interest, then federal law governs how that interest is taxed). Maybe a closer call in Connecticut, where PTET is mandatory but still doubtful, in my opinion. Let this be a cautionary tale that if you are a shareholder/member/partner of a PTE that is contemplating bankruptcy, you should seek not only competent bankruptcy counsel but competent tax counsel as well, lest you wind up with phantom income for which you, not your now defunct PTE, will have to pay income taxes. Offit/Kurman PA counsels clients on bankruptcy and insolvency matters, including the tax aspects and effects of those matters. The views expressed herein are solely those of the author, are not intended as, and do not constitute, legal or tax advice.
August 16, 2022
Labor and Employment
Affirmative Action v.2022
The argument continues on whether affirmative action is legal in the academic admissions setting. In October, the Supreme Court will hear arguments in two cases challenging university affirmative action programs. This is the first affirmative action case heard by the Court since the conservative majority was seated. Management of some major corporations believes that the implications of those decisions could be far broader than their effects on schools’ admissions. It could affect businesses’ hiring, too. The cases are brought by a group called Students for Fair Admissions against Harvard and the University of NC, arguing that the school’s affirmative action admissions policies unconstitutionally harm Asian-American and white students. The universities maintain that race is only one of many factors considered in admissions, including geography, military service, and socio-economic status. Almost 80 companies, including Meta, Apple, Lyft, Uber, Verizon, and Alphabet, filed briefs supporting the schools’ affirmative action programs. Their attorneys assert that corporate diversity, equity, and inclusion efforts “depend on university admissions programs that lead to graduates educated in racially and ethnically diverse environments.” Their position is that only by allowing universities to use affirmative action will there be enough highly qualified future workers and business leaders, especially given the increasingly global nature of the economy. The brief also states that “[E]mpirical studies confirm that diverse groups make better decisions thanks to increased creativity, sharing of ideas, and accuracy.” Do you think workers trained or educated in a racially diverse environment are better employees?
August 15, 2022
Marriage on the Rocks
Marriage on the Rocks: How to (not) Ruin Your Case
Offit Kurman family law attorneys explore lessons from the Johnny Depp and Amber Heard Trial and other ways to ruin your case. Emily Shank, who is featured in this video, is no longer affiliated with Offit Kurman.
August 12, 2022
Tax
Self-Employed and Deducting Car Expenses? – Document or Else!
An internet search of “Schedule C filers” will yield a bevy of sites warning of the increased audit risk and audit red flags for Schedule C filers. As a reminder, Schedule C of Form 1040 is used by sole proprietors, and LLCs taxed as disregarded entities. The recent Tax Court case of Eze v. Commissioner, T.C. Memo. 2022-083 (Aug. 4, 2022) serves as a potent reminder of the need for taxpayers not only to document their business expenses but, when it comes to cars and trucks, to make sure the strict substantiation requirements of IRC § 274(d) and Temp. Treas. Reg. § 1.274-5T(c) are satisfied. Plain English, please. This means keeping records of car and truck expenses, i.e., where you go, the purpose of the trip, miles traveled, who you saw, etc… and make those records close in time to when the expenses were incurred. In Eze, the taxpayer, who’s return was selected for audit (this means the automated system flagged it because his expenses were so high), created his records months, if not years after the fact, created and used a calendar solely for the purpose of the IRS examination, offered no clear explanation when he made the entries, and could not explain how he could have remembered the minute details months and years after the fact. Other things the Tax Court had trouble believing: (1) the taxpayer made the same trip to the same client on the same day of each year; (2) recorded mileage was inconsistent (some trips from his home to New York he recorded as 354 to 362 miles, others he recorded as 448 to 450). There may have well been good reason for that. If I travel to our home office in Baltimore, my mileage each way, will range from 329 to 383, depending on the route. Like most others, I map the route when I am leaving and take the one that suits me the best. But if the taxpayer did that here, he did not offer a plausible explanation why. With the other issues involving his auto expenses records, the Court found the taxpayer’s testimony was not credible. Other things the Tax Court had trouble believing: (1) he took four round trips to Buffalo, New York, and three round trips to Charleston, South Carolina (the taxpayer lived in or around Baltimore, Maryland), all in one month, but could not explain why he needed to visit the same client that many times in one month; and (2) In 2015 the taxpayer showed some personal mileage, but none in 2016. Consistency matters! So, if you are entitled to deduct business mileage, keep accurate records. At a minimum, this should include: (1) miles driven; (2) date; (3) place; and (4) business purpose. These records should be made close in time to when the miles were driven. Have trouble remembering to do that? There’s an app (actually several) for that. Just remember to do period downloads or printouts so if your return is selected for audit, you can substantiate your business mileage deduction. Offit/Kurman PA counsels clients in business and corporate matters, including tax planning and advocacy. The views expressed herein are solely those of the author, are not intended as, and do not constitute legal or tax advice.
August 11, 2022
Tax
Legal Fees – Deductible as Ordinary Business Expenses or Capitalized?
This is the question currently on appeal from the Tax Court to the Third Circuit. In Myland, Inc. v. Commissioner of Internal Revenue (Case No. 22-1193, 1194 & 1195) the IRS appealed the Tax Court’s ruling that Mylan (the taxpayer) was entitled to deduct, as an ordinary business expense under IRC § 162(a), approximately $50 million in legal expenses it incurred to defend patent infringement actions in connection with its manufacture of generic drugs. The Service contended Mylan’s $50 million in legal expenses should be capitalized under IRC § 263(a) because, in its mind, the expenses were related to the acquisition of a capital asset. Okay, so what difference does this make? A big one. If Mylan establishes the legal fees were ordinary business expenses, it gets to deduct those fees as they are incurred (which they did on their timely filed tax returns for the years at issue). If not, Mylan must recover its legal fees over a fifteen-year period, through amortization and depreciation deductions (Ouch!). Because Mylan deducted the fees currently as an ordinary business expense, if the Service ultimately prevails and those deductions are denied, Mylan will also incur interest and penalties (salt in the wound). What is it, an ordinary business deduction or a capital expense? The answer all depends on whether the expense either: (1) creates or enhances a separate and distinct asset; or (2) otherwise generates significant benefits for the taxpayer extending beyond the current taxable year. Yep. About as clear as mud. To provide clarity the Service promulgated Treas. Reg. § 1.263 to provide additional guidance. Without getting too deep into the weeds, if a taxpayer incurs expenses (including legal fees) to create or improve an intangible asset, which includes “rights obtained from a governmental agency,” i.e., trademark, trade name, copyright, license, permit, franchise, or similar right granted by that governmental agency,” those expenses are capital expenses that may only be recovered over the useful life of the asset through amortization and depreciation deductions. Treas. Reg. § 1.263(a)-4(d)(9)(l). Although most businesses do not have patents, many do have other intangibles such as trademarks, trade names, and copyrights, to name a few. The deductibility of legal expenses depends on the nature of the underlying claim for which the legal expenses were incurred, so businesses must look to the substance of the claim or transaction that gave rise to the legal fees to determine whether the expenses are ordinary business expenses (and, therefore currently deductible) or a capital expenditure, recoverable over the useful life of the asset. With intellectual property becoming ever more important and valuable to businesses of all types and sizes, business owners need to be mindful of how and when legal fees (and other expenses) incurred to create or defend rights in intellectual property are treated for federal income tax purposes-deductible currently as an ordinary business expense or capitalized over the life of the asset. As for how the Third Circuit will rule? My money is on Mylan. Offit Kurman PA counsels clients on creating, enhancing, and protecting intellectual property, including the tax aspects and effects of those transactions. The views expressed herein are solely those of the author, are not intended as, and do not constitute legal or tax advice.
August 5, 2022
Contractor's Corner
Workplace Compliance: Avoiding Costly Mistakes
When you get down to brass tax, the fundamentals of running a successful FedEx operation are having operational trucks and employees to run the routes. Like most other businesses, employees are the organization’s lifeblood but can also be the most troublesome from a compliance perspective. This is especially true for FedEx contractors who, in managing their workforce, must work to remain in compliance with state, federal, and local laws and with FedEx requirements. One of the main struggles with maintaining workplace compliance is that there is a federal baseline related to wage and hour, discrimination, and leave laws, but states and local governments are free to require employers to provide additional benefits beyond the federal system offers. This means that states and local governments all over the country have different laws that employers must follow regarding employees. Generally speaking, the east coast states, California, and major cities have the most favorable laws and protections for employees, and southern and mid-west states have minor employee regulations and benefits. Sometimes, whether a state or local law is applicable is based on the size of the employer, meaning that small businesses, like a small FedEx contractor, would be exempt from compliance, while other state and local laws apply no matter the size of the company. Often, through speaking with other contractors and because they are on good terms with FedEx, contractors wrongly assume that they are following all relevant employment laws. However, given the patchwork of federal, state, and local laws, it is easy for contractors to overlook what they may see as nominal wage and hour violations or fail to provide employees with required federal, state, and local notices or protections. These oversights can be costly, both from a retention and an economic standpoint. For instance, many wage and hour laws, including the Fair Labor Standards Act, have expensive penalties for non-compliance, including double or treble damages and paying the employee’s attorney’s fees. Ultimately, different states have different employment laws, and compliance with these laws is an integral part of running a FedEx business. Contractors should ensure their policies and procedures meet all state, federal, and local legal requirements and that their practices align with what is required of them under their FedEx contract.
August 1, 2022
Bankruptcy
Crypto Frame Taking Shape in Real Time
In 2022, CNBC reported on the EthCC conference in Paris, a gathering for hardcore Ethereum developers and technologists. A special spinoff event was a limited invitation only rave party in the Catacombs of Paris, labyrinth of centuries-old tunnels 65 feet underground, which hold the skeletal remains of around six million Parisians.[1] Visiting the Catacombs is considered illegal, although it appears to be tolerated. The CNBC report portrayed the event as surrounded by secrecy. Multiple teams were assembled via an anonymous Telegram group and gathered across the 14th arrondissement of Paris to sneak into the underground landmark. Meanwhile, on this side of the Atlantic Ocean, the crypto world navigated a different kind of labyrinth – those of a chapter 11 reorganization in U.S. bankruptcy courts. In July 2022, two crypto players filed chapter 11 petitions in the Bankruptcy Court for the Southern District of New York– Voyager Digital, LLC, and its affiliates, and Celsius Network LLC and its affiliates. WHY IS THIS SIGNIFICANT? Voyager Digital operates a cryptocurrency brokerage that allows customers to buy, sell, trade, and store cryptocurrency on an easy-to-use and “accessible-to-all” platform. In addition to providing brokerage services, Voyager offers custodial services for customers who store cryptocurrency on Voyager’s platform. Voyager provides loans, typically in the form of a specific type of cryptocurrency, to counterparties in the cryptocurrency sector to facilitate liquidity or trade settlement. Interest earned from the Company’s loans is passed along to customers, who earn a “yield” on their stored cryptocurrency. See Declaration of Stephen Ehrlich, Chief Executive Officer of the Debtors in Support of Chapter 11 Petitions and First Day Motions, Doc. No. 15. Celsius is a cryptocurrency-based finance platform that provides financial services to institutional, corporate, and retail clients across over 100 countries. According to the filings, Celsius was created in 2017 to be one of the first cryptocurrency platforms to which users could transfer their crypto assets and (a) earn rewards on crypto assets and/or (b) take loans using those transferred crypto assets as collateral. Headquartered in Hoboken, New Jersey, Celsius has more than 1.7 million registered users and approximately 300,000 active users with account balances greater than $100. See Declaration of Alex Machinsky, Chief Executive Officer of Celsius Network LLC in Support of Chapter 11 Petitions and First Day Motions, Doc. No. 23. The bankruptcy court was flooded with letters from individuals who feel robbed by the debtors and call for return of their deposits. The treatment of crypto is not addressed in the Bankruptcy Code and the bankruptcy courts are just starting to grapple with the treatment of cryptocurrency as an asset in bankruptcy proceedings. In fact, cryptocurrency, for more than ten years, has been characterized by price volatility and uncertainty regarding its legal status. Yet, in 2021, the crypto market’s value skyrocketed from $965 billion to as much as $2.6 trillion, according to a Morningstar analysis. After many years of debating whether cryptocurrency should be considered security or commodity and which federal agency should be the primary regulator, the more important question for the retail customers is whether they could recover in kind from a crypto brokerage like Voyager or a platform like Celsius whose model resembles bank operations – take deposits and use the deposit to make loans, but without the regulatory oversight that banks experience and without FDIC protection. For customers of securities brokers, there are regulatory mechanisms that provide certain protections. Securities brokers regulated by the Securities and Exchange Commission are subject to a net capital rule—they must cease operations before their assets fall below the level that allows customer claims to be met. In addition, broker-dealers must belong to the Securities Investor Protection Corporation (SIPC), which provides an insurance scheme whereby customers of failed broker-dealers may receive up to $500,000 from the SIPC fund. For customers dealing with futures, section 4d(a)(2) of the Commodity Exchange Act (C.E.A.) provides certain protections as it requires that customer funds received by a future commission merchant to margin, guarantee, or secure a customer’s futures contracts be held in segregated accounts, and not be commingled with the funds of the future commission merchant itself, nor used to guarantee the trades or contracts of any person other than the customer. Futures commission merchants must compute daily the amount of segregated funds on hand and the amount required to be held. Any shortfall must be reported immediately to the Commodity Futures Trading Commission. 17 C.F.R. Section 1.32. None of these protections would be available in these recent filings at first glance. These crypto reorganization proceedings could potentially chart the way forward and address critical questions like – Would cryptocurrency be treated as a commodity or currency, and when could it be treated as a security? How can the cryptocurrency be used in the marketplace to generate recovery, and what’s the proper timing for valuation of crypto assets? Would withdrawals of accounts within the 90-day period before the filing be subject to avoidance actions? [1] https://www.cnbc.com/2022/07/19/ethcc-paris-crypto-developers-gather-as-turmoil-grips-industry.html For further information, please feel free to reach out to Albena Petrakov
July 29, 2022
Business
Executive Playbook: Alternative Solutions for Recruiting and Retention
Recruiting and retention continues to be a challenge for employers. While employers could always pay employees more, that is not a particularly attractive solution and, in many cases, is not a solution at all. In this episode of the Executive Playbook, Mike and Russell discuss strategies that employers can implement to attract new employees and retain existing employees.
July 28, 2022
Labor and Employment
Please Release Me
I have been dealing with a lot of claims recently from unhappy clients who have either been charged with employment discrimination or threatened with suit by disgruntled former employees. What to do? One word: release. I’m begging you have your outgoing employees sign a release of all claims and promise not to sue. This requires a good form and a payment to the outgoing employee. The payment is required to create an enforceable contract: you pay them, and they release your business from claims. A lot of employers are understandably reluctant to pay severance to people they’ve let go. However, it can be a very small payment. Employees appreciate the gesture as well, and this may decrease the chances that they bad-mouth the business. (A good release also includes a promise not to disparage the business, however.) It can cover all potential claims arising up to the time of signature and can also alert employers to any potential claims (for example, a workplace accident.) A smattering of recent examples: The minority employee who charged the employer with race discrimination (the same person hired and fired the employee, obviously making it far less likely that the decision-maker was biased.) The employee who charged the employer with disability discrimination and failure to accommodate disabilities (the person never reported any disabilities, the decision maker had no knowledge of any, and the person never requested accommodations). The employee who claimed to have reported a financial discrepancy to the employer (they don’t recall this employee ever discussing financial matters), and thus, they claim that they were discharged in retaliation for whistleblowing. The list goes on; these are just a few recent examples. Don’t be afraid to let an underperforming employee go, but give them a week’s severance and get that release signed. Check with an employment attorney to be sure that your release covers all potential legal issues.
July 27, 2022
Franchise Law
"Not So Fast" – Maryland Gas Station Operator Obtains Injunction Stopping Franchise Termination
On May 25, 2022, the U.S. District Court in Greenbelt, Maryland issued a preliminary injunction ordering PMIG 1025, LLC and Petroleum Marketing Group, Inc. ("PMG") to continue its franchise relationship with the operators of the “Airport Shell” retail gas station and convenience store near Baltimore Washington International Airport during the pendency of the operators' case that PMG did not have good cause to end their petroleum franchise relationship under the U.S. Petroleum Marketing Practice Act (the "PMPA"). The Court, through highly respected veteran jurist Paul W. Grimm, ruled that the operators had a reasonable chance of prevailing on the merits of their claims that PMG improperly terminated the Franchise Agreement for the operation of Airport Shell. The Court further found that the harm to the plaintiffs without an injunction issuing, namely losing control over their business, was greater than the potential harm to the defendants with such an injunction. The PMPA, which begins in Title 15 of the U.S. Code at Section 2801, protects franchisees by limiting the circumstances under which a petroleum franchisor may terminate or “fail to renew” a motor fuel franchise. Mac's Shell Serv., Inc. v. Shell Oil Prods. Co. LLC, 559 U.S. 175, 177 (2010) (citing 15 U.S.C. §2802). The PMPA provides protections against termination or non-renewal to motor fuel dealers that are superior to the typical provisions of the franchise and lease agreements between petroleum sellers and operators, or indeed between typical business format franchisors and their franchisees. The particular factual circumstances of the BWI Airport Shell case are quite complicated, as the site at issue is subject to a master lease with the Maryland Aviation Administration. However, the essence of the dispute is whether PMG acted in good faith (meaning “subjective good faith” based on an “honest evaluation of the franchisor’s own business needs”) and in the ordinary course of its business in demanding substantial rent increases and property improvements as a condition of continuing the franchise, or whether it imposed those conditions as pretext or "poison pill" to force out the operator and begin operating the location through employees. This is a scenario familiar to business format franchising, particularly where the franchisor also controls the real estate on which the franchised business operates. The injunction issued is just for the operators' case, as it proceeds through the U.S. district court to trial before a federal jury (likely in the summer of 2023). However, it is notable that to demonstrate its legal right to end the franchise relationship, PMG will be required to prove that the increased rent and burdens it demanded as a condition of franchise renewal were "the result of determinations made by the franchisor in good faith and in the normal course of business, and . . . franchisor's insistence upon such changes or additions [were not] for the purpose of preventing the renewal of the franchise relationship." While the PMPA does not apply to non-petroleum business format franchises, veteran business format franchisees being confronted with commercially unreasonable demands to renew their franchise should consider whether decisions under that law, used by analogy, can help their cause. The case decision described is Fursyth Petroleum Foundation Inc., et al., Plaintiffs v. PMIG 1025, LLC, et al., U.S. District Court, D. Maryland, Southern Division. Case No. PWG 21-cv-2433 (Dated May 25, 2022).
July 27, 2022
Family Law
Mediation Tips from A Mediator and Retired Judge Sandy Brooks’ interview with Retired Judge Michael Mason
Sandy: How long have you been a mediator, and approximately how many matters do you mediate a year? Judge Mason: I’ve been mediating since approximately January 2019. Last year, I did just short of 80 mediations. Sandy: Of the cases you mediate, how many are family law matters? And of the family law matters, how many do you estimate reach a settlement through mediation? Judge Mason: Around 40% of the cases I mediate are family cases. I would estimate approximately 85% are resolved through mediation. Sandy: Do you believe your background as a Circuit Court Judge benefits you as a mediator in family law cases? Judge Mason: Yes. I think frequently, the attorneys for both parties have a reasonable sense of where the case should settle. Often the problem is getting the clients to accept that outcome is reasonable. I think coming to the mediation with years of experience as a judge who’s seen a lot of these cases can help convince the clients the result is a reasonable one, even if not one they are particularly happy with. Sandy: What are some of the most complex family law issues to mediate? Judge Mason: The most difficult cases to mediate are relocation cases and cases that involve allegations of abuse that are not independently corroborated. It’s very difficult in those matters to find some middle ground the parties can accept. The other difficult ones are those where the economically dominant spouse is self-employed and his/her income varies significantly from year to year, frequently taking a downturn once the divorce is anticipated. Also, those where the parties’ assets include a business which requires valuation. The valuations are normally miles apart. Sandy: Do you have any advice for attorneys prior to mediation? Judge Mason: Yes, always talk to the mediator and let them know what you honestly think might get the case settled. If there is a problem with the client, let them know. Also, make sure you’ve shared any important documents you intend to rely on at the mediation with the other side in advance so they have a chance to review it. Usually, the other side will totally discount any information they are seeing for the first time at the mediation without an opportunity to check it. As well, they typically resent it being given to them at the last moment, and that can affect their view of the other attorney. Sandy: Do you have any pointers for the parties to maximize their success at mediation? Judge Mason: Be prepared. Don’t wait until the morning of the mediation to prepare your joint property statement unless there is none to speak of. Get your pre-mediation statement to the mediator in time, so they have a chance to review it and any exhibits in enough time to speak to you in advance of the mediation. Have the key documents that support your position readily available during the mediation and share them with the other side in advance. Understand the attorney on the other side is generally not your enemy or being a jerk. Their client has a very different view of the relationship, which they have communicated to the attorney. The attorney is typically acting based upon those facts, which are very different from the ones that guide you. Sandy: What are some strategies for moving the parties past an impasse? Judge Mason: Sometimes, when the parties feel they’ve reached an impasse, I’ve found it helpful to recess the mediation for a few days/weeks. Often after the parties have a chance to get away from the immediate negotiations for a while, they will reassess their positions. On occasion, I’ve also found it helpful to offer the parties a mediator’s suggestion to help bridge a gap. I propose a solution which they are free to accept or reject. Neither party is told if either accepts the proposal unless both do. Judge Michael Mason began practicing law in Maryland in 1974. He spent ten years in the Montgomery County State’s Attorney’s office. He was the head of the Career Criminal Unit when he left in 1984 to set up a small general practice with two other prosecutors, Judy Catterton & Paul Kemp. They were later joined by a third, Martha Kavanaugh. He was in private practice for about ten years, and they did a little bit of everything that involved going to court. In January of 1994, he was appointed by Governor William Donald Shaefer as an Associate Judge of the Circuit Court for Montgomery County. He was sworn in as judge in March of 1994. He served full-time as an Associate Judge until December 2018, when he retired. He continues to sit as a Senior judge on an as-needed basis. He served numerous rotations as a family judge during his almost 25 years full-time on the bench. He occasionally hears some matters as a family judge. Beginning in January of 2019, he began a private mediation practice and has since mediated well over 200 cases. The largest single segment of the cases he mediates are family cases, but he does a wide range of other civil cases.
July 18, 2022
Family Law
Alternatives To Court
Litigation can be scary and expensive, emotionally as well as financially. But you do not necessarily have to go to Court to resolve issues in a divorce. The first step in determining how best to proceed is to discuss your options with experienced counsel who specialize in family law. Family law is a unique area of the law, and only those lawyers with experience have the level of knowledge and sophistication to evaluate your options with you. Often, cases can be resolved by negotiation through counsel. But there are other options available, and since divorce can be complex and complicated, one should consider all of them. Mediation is often used in family law, even if the parties are already engaged in litigation. Trained mediators facilitate agreements. They do not impose their position on either of the parties. Rather, a good mediator will challenge both parties not to expect their “best day in Court.” Reality often sets in, and parties recognize the pros and cons of their positions. Mediation often leads to an agreement, which can be incorporated into a Judgment of Divorce. Many attorneys who specialize in family law are now trained to handle cases in a collaborative process. This process permits the parties to evaluate their goals and explore options in a joint meeting setting. Another option is arbitration, where an arbitrator more or less substitutes for a Judge. However, unlike in a Court situation, the parties are able to select their arbitrator, determine what issues will be presented, set time limits, and control the amount of evidence that must be formally presented. In addition, there is some degree of privacy that is not typical in divorce situations.
July 15, 2022
Labor and Employment
Overturning Roe v. Wade : Potential Effects on the Workforce (Not a Political Speech)
I started thinking of some questions which might occur in the employment context after Dobbs v. Jackson Women’s Health Organizationoverturned Roe v. Wade and all cases following it since 1973. Here are a few. Are people protected from employment discrimination if they end or refuse to end a pregnancy? The Pregnancy Discrimination Act and Title VII of the Civil Rights Act of 1964 should continue to protect employees of companies with more than 15 employees from reproductive health-related discrimination and harassment even after the Supreme Court’s decision, regardless of their state of employment. Some states also have explicit abortion nondiscrimination statutes and/or a fewer employee number threshold. The Third, Fifth, and Sixth Circuit federal Courts of Appeals have held that an employer can’t discriminate based on the employee obtaining an abortion. The EEOC will continue to take this position. But the best course is not to inquire about employees’ health care decisions in the first place. Can an employer fire a person based on religious grounds for having an abortion? Courts generally have held that private employers can’t discriminate based on sex even if the policy purportedly is based on their religious beliefs. However, an exception to Title VII’s discrimination provision bars clergy members from bringing an employment discrimination claim against religious institutions. Can a pregnant person or one who had an abortion be protected from employment discrimination based on the Americans with Disabilities Act? Pregnancy itself isn’t a disability under the ADA unless the person is experiencing complications or aftereffects of pregnancy that impact one or more “essential life functions”; for instance, the mother develops long-term high blood pressure, affecting her ability to work at a broad variety of jobs. It’s also feasible that the aftereffects of an abortion could be an ADA disability if it impacts those functions. There will be more claims of disability and requests for accommodations due to pregnancy. How will this decision impact our current labor shortage? An immediate reduction in the labor force is a logical conclusion. The more pregnancies there are, the more pregnancy-related health issues will exist – leading to more absenteeism, reduced work hours, and disability leaves. Mothers will be out on maternity leave; paid maternity leave is legally mandated in some states. Workers sometimes leave the workforce because of pregnancy. That’s a few thoughts I’ve mulled over. What questions do you have about the effects of the Dobbs decision?
July 14, 2022
Labor and Employment
Time to Care Act
The Time to Care Act has passed, and beginning on January 1, 2025, most Maryland employees can apply for paid leave from a state fund. Fortunately, while this law took effect June 1, 2022, it isn’t functional until October 1, 2023, when employee and employer contributions start, and employees will not be eligible to take leave until January 1, 2025-allowing employers time to prepare. Essentially, employees who worked at least 680 hours over the 12 months immediately preceding the date on which leave is to begin are entitled to 12 weeks of paid leave for health and caretaking reasons. This leave can run concurrently with FMLA leave and, in many cases, essentially makes FMLA paid leave. That said, for employers who do not fall under the FMLA, it is important to note that the Time to Care Act does contain job protection similar to FMLA. While employers should start to consider next steps related to implementing new leave laws, they have some lead time. While employees won’t be eligible to take leave until 2025, employers should start communicating with employees about the new law next year since they will see contributions to the fund deducted from their paychecks beginning October 1, 2023. There are also a few unanswered questions based on how the law is drafted that I expect we will get answers to over the next 12-18 months.
July 13, 2022
Contractor's Corner
FedEx Purchase Agreements-More Than Just Legal Mumbo-jumbo
Often, when I first speak with prospective FedEx contractors, they are chomping at the bit to get started. They have learned about the industry and are excited about the opportunity to own a part of the booming logistics industry. This excitement often causes them to gloss over the purchase agreement in favor of moving forward quickly, viewing the purchase agreement as merely an obstacle to moving forward with the deal. However, failure to give the purchase agreement the attention it is due can yield complicated and expensive outcomes. The purchase agreement is more than just legal jargon and is the pivotal document dictating any verbal agreement the parties have reached and governs when the parties can terminate the deal, when the buyer gets their deposit back, and what the obligations of the seller between the execution of the purchase agreement and closing and after the sale. Outside the FedEx industry, businesses will often sign the purchase agreement and close on the same day. However, in the FedEx industry, because the sale depends on FedEx approval, the parties sign the purchase agreement and close weeks, if not months, later. This process, which is colloquially referred to as a “sign and delayed close,” leaves a lot of room for issues to arise between the time the parties sign the purchase agreement and closing, including, among other things: Seller failing to keep up the business in the ordinary course, leading to the buyer not getting what they were expecting on the closing date; A buyer failing to obtain or maintain financing; Physical assets falling into disrepair or becoming nonoperational; Employees leaving and the seller failing to hire new ones; and Seller improperly disposing of assets. Additionally, given the need to move forward quickly to start the process of getting FedEx approval, buyers are typically performing due diligence between signing the purchase agreement and closing, which can lead to buyers discovering unsavory details about the seller’s business that make them want to terminate the contract. While these are all real risks of “sign and delayed close” deals, they are palatable risks as long as the parties have a firm understanding of the risk they are each taking on, and the seller’s obligations between signing and close and the purchase agreement contains contingencies and reasonable outs for the buyer. Without proper protections in the purchase agreement, a buyer may have no choice but to move forward with an unexpectedly unsavory deal or risk losing their deposit. The moral of the story is: Don’t gloss over the purchase agreement! It governs the entire transaction, including what the buyer is entitled to between signing and closing and when the parties will go their separate ways.
July 10, 2022
Labor and Employment
Revisit Your Non-Disclosure Agreements or Risk #MeToo Issues
As you probably know, non-disclosure agreements signed by employees are legally binding. These may prevent workers from speaking out about workplace practices, including #MeToo issues. Newly introduced federal legislation targets NDAs that silence employees reporting sexual harassment. This is already a matter of law in some states, including California and Washington. Lift Our Voices, a pro-worker policy group headed by former Fox News anchor Gretchen Carlson, has spurred the House introduction by a Democrat of the SPEAK OUT Act (H.R. 8227). As with the last #MeToo related law passed, SPEAK OUT is backed by several GOP representatives already. Lift Our Voices expects an introduction of a similar Senate bill, apparently to be backed by Republican senators, including Lindsey Graham. Lift Our Voices supported another #MeToo-related bill, H.B. 4445, through its passage. That law nullifies provisions that force workers to arbitrate #MeToo claims rather than have their day in court. The SPEAK OUT Act applies to pre-dispute non-disclosure agreements signed before an issue arises. However, if a business is sued by an employee alleging sex discrimination or harassment, it would still be legal to include an NDA in a settlement agreement or release. Take a look at NDAs you’re using. It might be a good time to revise them, given the bipartisan support of this bill and state bills. I’m speculating here, but a court could go on to invalidate other provisions of the NDA if it contains this type of provision.
July 8, 2022
M&A Nuggets
M&A Nuggets: Be Prepared … for Due Diligence, Before You Seek to Sell Part 1 – Sales Tax
The due diligence process, during which the purchaser requests and analyzes large volumes of information, requires a huge time commitment from the sellers’ personnel. Unknown issues and issues which are known but have not been dealt with in the past, can rear their head during the due diligence process, interrupt the otherwise smooth flow of information exchange and, in turn, cause unnecessary pauses and extensions of the deal. To avoid this, it is wise to address these issues prior to seeking to sell the business. Routine items that are easily buttoned down before negotiations begin include making sure corporate documents are in place, that employment policies are up to date and that intellectual property, such as trademarks, have been properly protected. Other issues are not so routine. This article will focus one of those more unusual, or less thought of, issues – sales tax. The issue is – has the business properly collected, paid and reported all required sales tax. Unfortunately, this issue often arises for the first time during the due diligence process, when the purchaser asks about it. Many states have expanded the application of their sales tax statutes to more and more activities, particularly services, and to more ways that products or services are delivered, particularly on-line and out-of-state sales. Many sellers are surprised to learn during the due diligence process that sales tax had not been properly accounted for. The sales tax number not accounted for, when added to interest and potential penalties owed to state governments, can be a significant number and could result in part of the purchase price being held back at closing. This all can be avoided by conducting a sales tax analysis prior to entering into negotiations. The following questions should be answered: 1) which services and products the company provides are subject to sales tax, 2) are the means by which the company provides the services and products (on-line sales, shipments out-of-state) taxable, and 3) are any of the company’s customers (nonprofits, for example) are exempt from the payment of sales tax. The sales tax analysis can be laborious, given that the laws vary state by state. However, being up to speed on the issue and ensuring that the company is in compliance beforehand can save a lot of time, money and worry during the negotiation process. Look for the next issue – change of control provisions.
July 7, 2022
Labor and Employment
Is the Company’s Non-Compete Enforceable?
There’s a lot of fuss nationwide about whether agreements signed by employees not to compete after their employment are allowable. The FTC has now said that it is going to pursue a regulation banning non-competes. I have reviewed and written many non-compete agreements over the course of my career. Many of them are likely unenforceable under existing law. Here are some possible reasons (this list is not exhaustive): Agreements may be overbroad. For example, it may be that an agreement trying to ban someone from working worldwide when they only had a U.S. role is unenforceable. Depending upon where the person lives or is sued, the court might not let the employer revise the scope to make it enforceable. It would simply be thrown out, in that case. Employers: don’t overreach! Agreements may apply to employees who can’t be restricted. If the person is working in a state in which non-competes are void, even if the person is brought into a different state court, they might not be held to the agreement. D.C. passed an ordinance banning non-competes last year. Agreements don’t protect a legitimate business interest. Is there a legitimate business interest in disallowing a person (who has signed a confidentiality agreement) from working in the mailroom of a competitor? Agreements may restrict a person’s right to free speech. Just try to enforce an agreement not to disparage a company (and its employees, services, products, etc.) forever. Agreements don’t offer the employee any type of consideration for signing. In some states, merely letting someone continue to work for an employer is not enough value to the signer to enforce the non-compete. Most employees think nothing of signing these agreements – they want their jobs – or are not allowed to receive valuable things such as stock options if they don’t. But when the employee is moving on, they are faced with this dilemma: will I be sued if I ignore the non-compete? My advice is to consult a lawyer experienced in non-competes and non-solicitation agreements to learn more about yours. And employers, beware of the above common problems with non-competes; the law is changing very quickly on this subject. It’s wise to have your agreements reviewed often, given the number of recent court decisions and many new state laws limiting these provisions.
June 30, 2022
Bankruptcy
When Does the Automatic Stay Protect Companies that are Not in a Bankruptcy Proceeding?
In June 2022, Reuters published an article titled “How a “Bankruptcy Innovation” Halted Thousands of Lawsuits from Sick Plaintiffs.” The mechanism used to halt ongoing lawsuits was the automatic stay triggered by the bankruptcy filing of an affiliate of the defendant companies. The “bankruptcy innovation” is the so-called Texas Two-Step. The Texas Two-Step is not a lottery game or a country dance, or “a controversial legal maneuver,” as Investopedia calls it, but a statutorily established corporate transaction. It allows a company to complete a divisional merger under Texas corporate law, i.e. to separate assets and liabilities of a company into two different entities by creating a new entity and then liabilities and some assets are transferred into the newly created entity. The entity is then placed into bankruptcy to invoke the automatic stay. The main asset remaining with the entity that takes on the liabilities is a funding agreement, whereby the entity keeping the assets agrees to pay certain of the liabilities of the other (typically for mass tort claims). The primary benefit of the Texas Two-Step is that it keeps an operating company outside of bankruptcy but provides to the operating company the benefits of a bankruptcy filing. The Reuters article highlights four companies that used the Texas Two-Step: Georgia-Pacific, Saint-Gobain, Trane Technologies and Johnson & Johnson. The company that is currently in the spotlight for using the Texas Two-Step is Johnson & Johnson (“J&J”), and in particular, one of J&J’s subsidiaries – Johnson & Johnson Consumer Inc. (“J&J Consumer”). Following certain pre-2015 intercompany transactions, J&J Consumer assumed responsibility for all claims alleging that J&J’s talc-containing baby powder and other products caused ovarian cancer and other diseases. In October 2021, J&J Consumer engaged in a divisional merger under the Texas corporate statute. As a result of the divisional merger, J&J Consumer ceased to exist and two new companies, LTL and Johnson & Johnson Consumer Inc (“New J&J Consumer”) were created. LTL assumed all talc-related liabilities of the old company and filed a bankruptcy petition (initially in North Carolina but the case was transferred to New Jersey in November 2021). The talc plaintiffs challenged the filing and the use of Texas Two-Step. The bankruptcy court ruled in favor of J&J/LTL and rejected the challenge. The bankruptcy court’s decision is now on appeal (review of this challenge will be included in one of our next issues). Meanwhile, LTL had asked the bankruptcy court for permission to extend the automatic stay to thousands of cosmetic talc-related claims with respect to J&J, J&J Consumer, New J&J Consumer. The automatic stay serves to protect the debtor that filed a bankruptcy petition, by stopping all collection efforts, including not only halting pending lawsuits but any acts that constitute an attempt to exercise control over assets subject to bankruptcy protection, thereby giving the debtor a respite from creditors and a chance to attempt a repayment or reorganization plan. Technically, the stay is not extended. Rather, the bankruptcy court issues an injunction having the effect of “extending” the stay to the entity not in bankruptcy. Although the scope of automatic stay is broad, its protections typically apply only to debtors in bankruptcy, not non-debtor defendants. Shortly after the commencement of the bankruptcy proceeding, the North Carolina bankruptcy court granted a temporary restraining order and enjoined the prosecution of talc claims against the non-debtors (“Initial PI Order”). After the case was transferred to New Jersey, on February 25, 2022, the New Jersey bankruptcy court issued a decision that would extend the duration of relief granted under the Initial PI Order, including the issuance of a preliminary injunction for the duration of the Chapter 11 case, subject to the court revisiting continuation of the automatic stay and the preliminary injunction on June 29, 2022, and every four months thereafter. The court found that Section 362 of the Bankruptcy Code and Section 105 provide independent bases for granting an injunctive relief to non-debtor parties. The critical factor in the Court’s analysis was the impact of the non-debtor litigation on the bankruptcy estate. The Court concluded that continued litigation against the non-debtor parties would liquidate pending tort claims, as well as indemnification claims, against LTL outside of Chapter 11 and potentially deplete available shared insurance coverage, thereby frustrating the purpose of the automatic stay. Since the claims against the debtor and the non-debtor parties involved the same products, same time periods, same alleged injuries, and same evidence, continued litigation could prejudice the debtor. For guidance on this matter, contact Albena Petrakov at apetrakov@offitkurman.com or at 212.380.4106.
June 30, 2022
Business
Executive Playbook: Business Owners & the Changing Economy
In this episode, Russell Berger and Mike Cammarata discuss the impact of changing economic conditions on business owners. While the news is filled with stories about inflation and a slowing economy, Mike and Russell talk about the practical challenges this creates for businesses and actions that businesses can take to prepare for economic uncertainty.
June 29, 2022
Healthcare
Drug and Medical Device Manufacturers Need to Comply with the ACA’s Sunshine Act – Part One
The Affordable Care Act includes a provision called the “Sunshine” Rule. More formally, the rule is called “The National Physician Payment Transparency Program: Open Payments.” The Centers for Medicare & Medicaid Services (CMS) announced the terms of the rule in 2014. The rule is designed to help patients and others understand when the medications and medical devices their doctors recommend come with a catch – that the doctor has a financial interest with the drug company that makes the drugs or the device manufacturer that make the medical devices. According to the CMS deputy administrator for Program Integrity, “Disclosure of these relationships allows patients to have more informed discussions with their doctors.” The rule applies to drugs, devices, biologicals, and medical supplies – that are covered by Medicare, Medicaid, or the Children’s Health Insurance Program (CHIP). The manufacturers are required to report any payments or transfers of items of value that the manufacturers make to doctors and teaching hospitals – to CMS. CMS will post that information on its public website. The rule also mandates that the manufacturers and group purchasing organizations (GPOs) disclose to CMS any doctor ownership or investment interests. The aim of the rule is to provide increased transparency. The rule is designed to “help reduce the potential for conflicts of interest that physicians or teaching hospitals could face as a result of their relationships with manufacturers.” The rule become effective on August 1, 2013. CMS began disclosing the data on its website on September 30, 2014. The rule can be viewed at Federal Register: Federal Register Documents Currently on Public Inspection According to Health Affairs, the Sunshine rule, also called, “The Physician Payments Sunshine Act,” is based on section 6002 of the Affordable Care Act (ACA) of 2010. Why was the Sunshine Rule enacted? Drug and medical device manufacturers rely on doctors to refer their products to their patients. It’s one thing for a doctor to refer a drug or device based on an independent review by the doctor of all the appropriate drugs and devices (and the brands of each drug and device) – and another to make a recommendation based on a conflict of interest. Doctors should recommend medical products based on the best health outcomes for their patients and not on their own financial interests. The concern about a conflict of interest between the patient and doctor is so concerning that there are several federal laws that regulate referrals by doctors of all medical products in which the doctor has a financial interest in the product or has been given a financial incentive to recommend the medical product. Stark Law. Stark Law prohibits healthcare providers from making referrals to certain designated medical practices such as laboratories in which the physician or a close family member has a financial interest. Stark law applies to services and products that are ordered for Medicare patients. A financial interest includes compensation, investment, and ownership. There are some exceptions that generally do not endanger a patient’s health. The Anti-Kickback Statute (AKS). This law is a criminal statute that forbids medical companies from paying or providing financial incentives to physicians to refer the company’s products to the patients of the physicians. Some safe harbors do apply to the AKS. The drafters of the ACA were concerned about incentives such as free meals and speaker, or consulting fees paid to the doctors. According to Health Affairs, the financial relationships: “Can have many positive outcomes and–particularly in the context of consulting and research funding–are often a key component in the development of new drugs and devices.” However, they can also create conflicts of interest and in some cases can blur the line between promotional activities and the conduct of medical research, training, and practice. The financial interdependence between physicians and the manufacturers of medications, medical devices, biologicals, and medical supplies is far from minimal. According to a 2009 nationwide survey, nearly 84 percent of doctors had some type of financial relationship with the manufacturers. – of which, more than ½ were meals provided in the workplace. About 20 percent of doctors were reimbursed for attending a meeting or CME (continuing medical event). Less than 15 percent of doctors received payment for professional services. The numbers for the survey were lower than a similar survey taken five years earlier. One of the factors for the decrease, according to Health Affairs, “may be the growing awareness among researchers and policy makers of the ways that physician-industry relationships can bias physician decision making, encourage inappropriate prescribing that drives up health care costs, and undermine the independence and rigor of clinical research.” Professional bodies, academic institutions, and medical journals have all begun to implement conflict-of-interest protocols. Five states and the District of Columbia, prior to the ACA, had already passed laws mandating that the makers of drugs, devices, medical supplies, and biologicals report certain details of their financial relationships with clinicians. The US National Institutes of Health requires that all grantees disclose “Significant financial relationships with manufacturers.” The Food and Drug Administration (FDA) requires that “drug sponsors report on any financial ties with clinical investigators that reach certain monetary thresholds (which are higher than those set by the Sunshine Act).” Some drug manufacturers and medical device companies, prior to the Sunshine Rule, were required to disclose these relationships as part of legal settlements with the US DOJ (Department of Justice). In 2008 and 2009, respectively, the Medicare Payment Advisory Commission and the Institute of Medicine published influential reports on physician conflicts of interest – documenting the need for more transparency of physician-industry relationships. “Both documents also called for the establishment of a standardized, nationwide, mandatory public reporting program, which could supplement or replace the patchwork reporting system currently in place.” Senators Chuck Grassley and Herb Kohl first introduced the Physician Payments Sunshine Act in 2007. That initial version of the bill did not pass. The provisions were later amended and incorporated into the ACA as section 6002. STARK LAW EXCEPTIONS THAT MIGHT APPLY TO YOU In today’s video, we discuss some exceptions to Stark Law, which deals with improper referrals by physicians and healthcare practitioners. NEW PROPOSED RULES FROM THE CMS AND THE OIG-HHS ON STARK LAW AND FROM THE ANTI-KICKBACK STATUTE The CMS and HHA are proposing new rules, such as the Patients over Paperwork Initiative, where the focus of Stark and AKS will be on value-based arrangements What are the provisions of the Physician Payments Sunshine Act? The Sunshine Rule applies to manufacturers of drugs, devices, biologics, and medical supplies. The Rule applies to three different categories of payments when the bills for the payments are covered by Medicare, Medicaid, or CHIP. General payments or transfers of value. These include travel reimbursement, meals, and consulting fees. Ownership and investment interests, in manufacturing companies, by the physicians (or immediate family members). Ownership and investment interests in group-purchasing organizations (GPOs). GPOs are “entities that negotiate pharmaceutical contracts on behalf of health care providers.” All physician-owned distributors of medical devices are also expected to report. Research payments. This category includes payments for participation in preclinical research, clinical trials, or other product development activities. “To qualify as research under the final rule, it must be subject to a written agreement or a research protocol.” The amount of the payments will be handled separately “to reflect the fact that a research grant made to an investigator typically flows through a host organization and may not directly accrue to the physician leading the research.” Some exemptions from the disclosure requirement do apply. Drug and medical device manufacturers do not need to disclose payments under $10 – unless the individual payments add up to more than $100 for the year. Manufacturers are also exempt from disclosing payments for educational materials that are intended solely for the patients – or for product samples. However, manufacturers must still submit data to the FDA about the “identity and amount of samples requested and distributed to physicians.” Other exemptions may apply to products that are still in development and have yet to be approved by the FDA. Payments to a CME organization “to subsidize educational events will also be exempt from reporting, provided the event is accredited by a provider association (any one of five associations identified by CMS) and the manufacturer in question has had no direct role in the choice or compensation of the speaker(s).” Our skilled healthcare lawyers can explain whether any of these exemptions still apply in 2022. Generally, once the data is posted – the manufacturers, GPOs, physicians, and teaching hospitals have 45 days to review the data attributed to them and 15 days after that to dispute and correct the data. The Physician Payments Sunshine Act imposes the following penalties (our lawyers can explain any changes) for failing to comply with the ACA reporting requirements: The penalty for each payment a manufacturer or GPO doesn’t report is between $1,000 and $10,000. The maximum yearly penalty amount for non-compliance is $150,000. The penalties increase if the manufacturer or GOP “knowingly” failed to report a payment, for knowing violations, the penalties for each violation range from $10,000 to $100,000. The maximum penalty is $1 million. The CMS rules also provide that complying with the Physician Payments Sunshine Act (PPSA) does not protect the manufacturer, GPO, doctor, or teaching hospital from Stark Law, the AKS, the False Claims Act, or other healthcare referral laws. The reverse is often the case – meaning that the disclosure of the payments increases the likelihood of an inquiry into these civil and criminal laws. The Physician Payments Sunshine Act is part of the Affordable Care Act requires manufacturers, GPOs, physicians, and teaching hospitals to disclose certain payments and transfers of value to the physicians they work with or that receive the payments/transfers. These companies and practices should review the PPSA and other federal and state laws that regulate physician referrals and recommendations with experienced health care lawyers. There are specific requirements. Some exceptions may apply. There are severe penalties for failing to comply with the PPSA. AFFORDABLE CARE ACT CREATES SCOPE OF PRACTICE LEGISLATIVE SCRAMBLE FOR HEALTHCARE PRACTITIONERS Healthcare reform is creating incentives for even more legislative scrambles by different practitioner lobbying groups for favorable legislation that will protect, preserve, and expand their own […] Medical companies, doctors, and teaching hospitals should contact Cohen Healthcare Law Group, PC to ensure compliance with the CMS Sunshine Act. Our experienced healthcare attorneys advise medical business practices about their healthcare compliance requirements and the dangers of non-compliance. Contact our healthcare law and FDA attorneys for legal advice relevant to your healthcare venture.
June 23, 2022
Tax
Operating Agreements – One Size Does Not Fit All
A recent private letter ruling highlights the danger of using a form or template blindly. PLR 202219005 involved a limited liability company (the “Company”) that sought, but failed, to be taxed as an S-corporation. On the effective date of the Company’s organization, the Company duly adopted a written operating agreement. The problem was the written operating agreement contained provisions appropriate for partnerships but not S-corporations. Specifically, one provision of the operating provided, “the proceeds from liquidation will be allocated to members with positive balances in their respective capital accounts, pro-rata, in proportion to the positive balances in those capital accounts.” Provisions like this one are seen routinely in operating agreements for entities taxed as partnerships for federal income tax purposes but are wholly inappropriate for entities taxed as S-corporations. Recall an S-corporation may have only one class of stock. While an S-corporation can have voting and non-voting shares, all shares must have identical rights to distribution and liquidation proceeds. The problem is partnership allocation provisions, such as the one at issue here, do not confer identical rights to distribution and liquidation proceeds. More of a problem among the DIY community who grab forms off the internet; this also can happen with attorneys who create limited liability companies (and operating agreements for those LLCs) without understanding what the agreements actually say and do. The allocation and distribution provisions of an operating agreement are the meat of the agreement because these provisions determine how members get money (or don’t get it) (distributions) and how they are taxed on money (or not taxed) (allocations). You don’t go to your dentist for heart surgery, and you don’t go to your cardiologist to fill a tooth. Lawyers are the same. When setting up a new company, turn to a lawyer well-versed in business and tax matters. The PLR does not discuss how the operating agreement came to contain partnership tax allocation provisions, only that it did. This PLR serves as a cautionary tale – do not use forms blindly. With operating agreements, one size DOES NOT fit all. Each operating agreement should be tailored to the facts and circumstances of the particular transaction and the parties’ intended tax treatment. In the case the Company was fortunate, the Service granted relief. Still, the need for (and cost of) a PLR easily could have been avoided had the taxpayer carefully reviewed the operating agreement. Scott Tippett is a member of Offit Kurman, where he focuses his practice on business and tax planning. Offit Kurman counsels business owners on strategic business, tax, and risk management techniques. The views expressed herein are solely those of the author’s and do not constitute and are not intended as legal or tax advice.
June 22, 2022
Labor and Employment
Defamation Claims: Johnny Depp Pulled Off a Miracle
Clients very frequently approach our lawyers with a keen interest in suing someone for defamation, a la Johnny Depp. I strongly discourage these claims. It’s a very tough row to hoe. First, defamation (libel is written defamation and slander is spoken defamation) requires a statement of fact, not opinion. For example, “John Doe is a racist” is not a defamatory statement because “racist” is an opinion (versus “John Doe used a racial slur.”) It also requires publication – sharing the statement with others. That means that a person could tell you off when you’re in a room alone, and it’s not defamation. Also, there are exceptions: for example, special standards apply to statements about people in the public eye. Almost anything goes with political figures, for instance. Finally, you have to prove actual damages. It might have hurt your feelings that someone published something very negative about you or your business, but did it lead to monetary harm? More than your legal bill would be if you sued? If the above requirements don’t eliminate the possibility of filing a defamation claim, I still think it’s a very tough one. As clearly revealed at the Depp v. Heard trial, it is “he said, she said” all the way. The plaintiff must prove by a preponderance of the evidence (that’s 51%) that the defendant’s statement was defamatory. Looking at the example above, how does John Doe prove that he did not make the racial slur? It’s his word against someone else’s word. Somehow, Depp pulled off this miracle. Defamation suits are only for people who lost a lot of money or suffered a huge indignity via the statements and have money to burn. Depp lost a pirate movie and other commercial opportunities; it’s extremely embarrassing to be labeled as a domestic abuser, and he is very wealthy. I shiver to think what he paid his lawyers for that win – against a person who filed a successful counterclaim for defamation against him; likely can’t pay it because the verdict is so large; and, at the bare minimum, won’t be paid for quite a while during the appeals process. I wonder if he feels it was worth it.
June 22, 2022
Estates and Trusts
Is Same-Sex Marriage in Jeopardy?
This article has been updated. The Supreme Court’s decision overturning Roe v. Wade has sent abortion-rights advocates reeling. In a 6–3 opinion, the Court ended a constitutional right that was the law of the land for nearly half a century. The ruling could put other constitutional rights in jeopardy as well. Many in the LGBTQ community are asking, “Is same-sex marriage next?” Like the right to abortion, the right to same-sex marriage hinges on the Due Process clause of the Constitution’s 14th Amendment. This amendment was adopted after the Civil War as part of Reconstruction. Over the years, the Supreme Court has interpreted the amendment to guarantee the right to use birth control (Griswold v. Connecticut, 1965), to be intimate with someone of the same sex (Lawrence v. Texas, 2003), and to marry a person of one’s choosing (Obergefell v. Hodges, 2015). Writing for the majority in Dobbs v. Jackson, Justice Samuel Alito doesn’t mince words. He argues that Roe v. Wade was wrongly decided because the Constitution doesn’t explicitly mention abortion, and because a woman’s right to end a pregnancy isn’t “deeply rooted in this nation’s history.” This argument is misguided, if only because it runs afoul of stare decisis, the legal doctrine that obliges a court of law to follow prior court decisions when making a ruling on a similar case. The reasoning behind Justice Alito’s opinion may nevertheless form a road map for overturning same-sex marriage and other 14th Amendment rights. For those of us in the LGBTQ community, the question is what we can do to protect ourselves and our hard-won right to marriage. Those of us in same-sex relationships should prepare for the unexpected by drawing up estate plans. It is important to remember that a Supreme Court decision overturning Obergefell would not make same-sex marriage illegal. It would simply leave it to states legislatures to determine whether to allow gay marriages in their state. The Maryland Legislature has already done this. In 2012, it passed a bill legalizing same-sex marriage in the Free State. The law took effect on January 1, 2013, after winning approval from a majority of Marylanders in a statewide ballot referendum. Maryland’s same-sex couples who are already married can therefore take comfort. In the wake of a Supreme Court decision overturning Obergefell, our unions should survive, at least at the state level. But continued federal recognition of gay marriage would be less certain, and a national patchwork of laws and policies might necessarily develop. A marriage recognized in Maryland could suddenly be considered invalid in other states, and by the federal government. That could mean the end of important federal benefits, such increased Social Security payments to a surviving spouse. With that in mind, many same-sex couples are rushing to tie the knot. This is especially true of couples whose marriage plans were delayed by the Covid-19 pandemic. Whether we are disposed toward marriage or not, those of us in same-sex relationships should prepare for the unexpected by drawing up estate plans. Most plans include a will, financial power of attorney, and advance medical directive for each partner. These essential documents will authorize your partner or someone else you trust to manage your finances and health care if you ever become incapacitated. They will also help to ensure the efficient transfer of your assets upon your death. Marriage confers significant legal benefits, but a marriage license alone isn’t enough. No matter what the future holds for same-sex unions, an estate plan will help protect your relationship from some of life’s most significant uncertainties.
June 21, 2022
Tax
North Carolina Enacts Pass – Through Entity Tax
Recently the North Carolina General Assembly changed the law to permit pass-through entities (partnerships and s-corporations) to pay entity-level tax, thereby joining a majority of states (29 at last count) in doing so. The change is effective for tax years beginning January 1, 2022. As with most states, paying tax at the entity level is optional (mandatory in Connecticut). If a partnership pays tax at the entity level, the tax paid is a separately allocable item to the individual partners, so the net effect is the same, which begs the question, then why pay tax at the entity level. Originally pass-through entity tax (PTET) laws came about as a workaround for the state and local tax (SALT) limitations imposed by the Tax Cut and Jobs Act of 2017 (TCJA). Recall the TCJA limits deductions of state and local taxes to ten thousand ($10,000) annually, but taxes paid y an entity are business expenses, not subject to the 10K cap. There are two potential drawbacks of PTET. First, not all states give their residents credit for PTET paid in other states. Second, in some states, PTET is paid at a state’s top marginal rate (or more), so the advantage may be illusory at best. But let me suggest an additional aspect of PTET – asset protection. In the traditional model, a partnership would, at a minimum, make distributions to its partners to cover the taxes for the income allocated to each partner. Within the partnership, and here we are talking about a limited liability company taxed as a partnership, not a true general partnership, assets held within the LLC are beyond the reach of an individual partner’s creditors. However, when a tax distribution is made, the funds out of the LLC and into the individual partners’ bank accounts where the funds then become subject to set-off by the bank, garnishment by a judgment-creditor, withdrawal by a joint account holder, not to mention subject to the joint account holder’s judgment creditors, or, in extreme cases, prejudgment attachment. Depending on the amount of income allocated to a partner, the tax distribution could be substantial. Imagine the disgruntled, secretly planning to separate spouse who waits until the tax deposit is made to drain the joint bank account, leaving the partner/member without immediate liquid assets with which to pay tax liabilities. On the other hand, if the entity elects PTET, then the funds never leave the entity and are paid by the entity directly to the relevant tax authorities and the tax paid is allocated to the individual members/partners as though the tax distribution had been made to them and they, in turn, paid their respective tax obligations. No doubt, neither the North Carolina General Assembly nor any other state legislative body that enacted a PTET did it for asset protection purposes, but every now and then, life has its little bonuses. Scott Tippett is a member of Offit Kurman, where he focuses his practice on business and tax planning. Offit Kurman counsels business owners on strategic business, tax, and risk management techniques. The views expressed herein are solely those of the author’s and do not constitute and are not intended as legal or tax advice.
June 16, 2022
Healthcare
Can an MSO Operate a Medical Practice?
In today’s video, we talk about whether and how an MSO can operate a medical practice. I’m Michael H. Cohen, founding attorney of the Cohen Healthcare Law Group. We help healthcare industry clients just like you navigate healthcare and FDA legal issues and launch, or continue to scale, your health and wellness service, products, software, or app. The key here is, what do we mean by the term, “operate?” Are we talking about the business side, the clinical side, something in-between? If you have a medical spa, a multidisciplinary clinic, a medical group, a telemedicine venture, psychology group, software or an app that involves MDs, psychologists, or you’re in a situation where the non-medical entrepreneur wants to control the venture, but can’t entirely hand it over, due to corporate practice of medicine and fee-splitting concerns, that is where you’ll want legal advice on what your MSO can and can’t do. When we say MSO or Medical Services Organization, we mean the business that provides management and marketing services to the medical aspect of your overall architecture. For example, the non-MD runs the medical spa, but doesn’t participate in clinical decision-making and clinical staffing. Some states are tougher on MSOs than others. When we say “tough”, we mean that they have a “strong” prohibition against the corporate practice of medicine, as opposed to the “weak” form of CPM, in which the only real prohibition is against the MSO having actual control of medical decision-making. In the weak form of CPM or CPoM, non-medical corporations CAN hire and fire medical doctors. In the stronger form of CPM, MSOs can make many administrative and marketing decisions, but the professional medical corporation has authority over hiring and firing of clinical staff, final authority over advertising, and other such control. We cover this in much more depth in some of our other videos and our healthcare law blog. Here are some questions posed and quick answers we’ve given about this relationship between the MSO and the Professional Medical, or psychological Corporation in a “strong” anti-corporate practice of medicine state. 1. Can a Physician be an officer of or own an MSO? Many of our clients do, in fact, give the medical doctor an equity stake in the MSO. It’s quite common. Technically having said that, it could be considered a conflict of interest: because every time the physician provides services, the MSO also makes money, as the MSO typically charges the physician or the physician’s professional medical corporation at fair market value for MSO services. This conflict of interest is an ethical violation, possibly a legal violation in principle, and at a minimum should be disclosed to the patient. Having said that, some risks are more or less intense as others, so part of it is evaluating the risk and it depends on the client’s risk tolerance. 2. Can the business model be such that all the customer payments go through the MSO – the software, the app, and from there a portion gets retained by the MSO and a part goes to the doctor? In the old days—I’d say about ten to fifteen years ago—this flow of payments would pose a problem. Technically, it’s fee-splitting, in the sense that it makes it seem as though the MSO is getting paid the professional fee and then splitting it up between the MSO and the doctor. Or the MSO or platform, software platform, telemedicine platform could be seen as giving the physician a kickback for the referral. But today, these arrangements are common, they are facilitated by software and it’s just seen as a way to split up what the MSO gets for its MSO services, and the doctor for their professional services. One thing that what would be a no-no is for the MSO to pay the physician a salary. At least in California, MSOs cannot hire physicians. MSOs cannot hire them as W2 employees or as 1099 independent contractors. So, we typically use an MSO Agreement to govern the relationship between the MSO and the physician of the professional medical corporation, otherwise there’s the CPM risk. 3. Can you bonus the MSO staff? You can, but bonuses must be tied to KPI, not tied in any way tied to the value or volume of patient referrals the staff generates. 4. The physician sells the medical practice, the professional corporation. Can they be generous and give money to the MSO or their staff? Not a great idea, that’s apples and bananas. The physician owns at least 51% of the professional medical corporation, and the MSO owner is not a healthcare licensee and can’t own the 49% because they’re not a nurse, not a chiropractor, acupuncturist and so on. Alright, i hope that clears some of the dust here. If you have any questions, just send us a message or book an appointment at cohenhealthcarelaw.com. Here’s to the success of your healthcare venture, and we look forward to working with you soon. Testimonials
June 9, 2022
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