Category: Uncategorized

CFIUS Changes in 2020: Q&A with Danish Hamid of DLA Piper

Danish Hamid focuses his practice in the corporate practice of DLA Piper, working on cross-border transactions and regulatory compliance.  With this focus he has led over 250 transaction reviews with the Committee on Foreign Investment in the United States (CFIUS). Hamid authored the CFIUS chapter in the ABA’s Aerospace Defense Industries Year in Review, and he lends his expertise to the NLR to answer a few questions on changes to CFIUS in 2020; specifically, the agency’s website including a space for the public to provide tips on unreported transactions.

Read on for Hamid’s insights:

CFIUS has been empowered by the Department of the Treasury with more staff and funding to monitor transactions not voluntarily reported. What does this mean for companies who are involved or accepting foreign investment?

The fact that CFIUS is devoting greater resources and budget towards monitoring non-notified transactions means that CFIUS may ask parties involved in those deals to explain why they did not submit a filing to CFIUS. If that explanation is not compelling, CFIUS may direct them to submit a filing and possibly apply a more rigorous review standard with respect to that filing. CFIUS may also impose a civil penalty on the parties (in some cases up to the value of the investment itself) if they did not file mandatory filing on their own initiative prior to closing if one was otherwise required. Relevant regulations permit CFIUS to impose that penalty on any transaction party that violates the mandatory filing requirement. Given these circumstances, transaction parties conduct CFIUS due diligence reviews to determine whether their deals will trigger a mandatory CFIUS filing or merit a voluntary submission to CFIUS.

CFIUS had an increased jurisdiction scope under FIRRMA in January of 2020. What impact has this had on the landscape in the intervening months?

CFIUS’s expanded jurisdiction under FIRRMA has caused more transaction parties to consider whether their deals trigger a filing. We have also observed an increase in the number of filings with CFIUS.

CFIUS has set up a webpage to accept tips and other information from the public on transactions not reported to the agency–how does this change the landscape?  Is it important for companies to be aware of this formalizing of a previously informal process? 

The fact that CFIUS is now actively seeking public tips on non-notified transactions is a relevant factor that transaction parties will need to evaluate when deciding whether to submit a CFIUS filing. There is a risk that CFIUS may receive public tips from a variety of sources such as disgruntled employees of US target companies or competitors to foreign investors in or acquirers of US businesses.

On Friday, Aug. 14, 2020, the president signed an EO demanding the unwinding of a Chinese company’s acquisition of what would become TikTok–in your opinion, is this a sign of things to come?  What does this indicate about the current landscape of CFIUS and transactions with companies with access to American’s personal data?

It may be early to conclude if this is a sign of things to come. However, it has certainly captured the attention of CFIUS practitioners. Of course, separate from the EO, FIRRMA and recent regulations already made it fairly clear that CFIUS is interested in foreign investments in certain US companies that maintain or access sensitive data regarding US citizens.

Do you anticipate any major changes with CFIUS as we get closer to the election?

Yes, we anticipate further regulatory developments impacting CFIUS. Just recently, the Treasury Department issued new regulations that will go into effect on October 15th and have the potential of expanding the circumstances that trigger mandatory CFIUS filings. Those new rules seek to better align the CFIUS regime with US export controls by requiring parties to submit a mandatory CFIUS filing with respect to certain foreign investments in or acquisitions of US businesses involved with critical technologies for which a US regulatory authorization would otherwise be required.

Copyright ©2020 National Law Forum, LLC
For more articles on CFIUS, visit the National Law Review Antitrust & Trade Regulation section.

No Tricks, Just Treats When Working with Legal Media

Engaging with the media might seem more frightening than a haunted house, but working with journalists doesn’t have to be scary. As long as you’re adequately prepared, engaging with reporters can be an enjoyable experience that significantly bolsters your firm’s brand.

The key is to understand what journalists need and want for their legal news coverage, particularly as the state of the world and media industry continue to rapidly evolve. Notably, in the last seven months, the news has been changing so fast that what was important a few weeks ago — or even a few days ago — may no longer be significant to reporters and editors planning their future coverage.

Developing a Pitch 

When pitching an idea to the media, think about what does or does not make a good news story. Reporters receive hundreds of story ideas every day, and sometimes news that you find noteworthy unfortunately isn’t going to appeal to a bigger audience (e.g., too routine, too narrow in scope or lack of timeliness). Journalists look for pitches with issues their readers will care about and sources who can provide unique insights and angles into complicated issues. When reaching out to media personnel, think about how your matter, event, lateral hire or firm initiative fits into a larger trend or development, and provide this angle to reporters. Let them know of any distinctive elements or especially complex issues, and then sell them on why the item is relevant to their readers.

Rules of the Interview Process

Once you have secured an interview, set ground rules prior to the meeting or call about whether the conversation will be “on the record,” “on background” or “off the record” — and know the difference.

  • “On the record” means that the reporter may quote you and include your name and title.
  • “On background” means the reporter may use direct quotations but will attribute them to “a source familiar with the matter” or another agreed-upon designation that is clear enough to establish credibility but vague enough that it doesn’t reveal your identity.
  • “Off the record” means the reporter cannot quote you or use any of the information you provide without verifying it independently. These types of interviews grant sources anonymity and are typically used in connection with particularly sensitive stories. Be very careful, however, in these situations. Despite having your identity protected, the conversation isn’t really confidential. The best rule of thumb is to never tell a reporter anything that you are not willing to see in print – no matter what.

Generally, anytime you speak with a reporter, you are speaking on the record unless the reporter has agreed to a different arrangement.

After the ground rules are set, it’s not a good idea to try to switch them during the interview. That could become too confusing for both you and the reporter in terms of what is public information and what is confidential, which could lead to something being published that you didn’t want out in the open. Also, once something is said, it cannot be taken back, and it is fair game to be published. If you absolutely have to say something that should be kept private during an interview, confirm with the reporter before speaking that the upcoming statement is off the record.

Reporters are very unlikely to let you see a story before it publishes, but sometimes they will grant an interviewee quote review privileges if requested before the interview and if the publication schedule permits. But fast, tight deadlines are more of the norm these days, given the high volume of content being pushed out by publications, so not all outlets will be able to grant this request.

Keep in mind, though, that quote review is only used to confirm the accuracy of the quotations that will be attributed to you. It is not meant for re-writing for stylistic purposes and should not be misused as a fail-safe to fix imperfect statements.

Also before an interview, ask the reporter for the overall context of the piece and for specific questions that he or she wants to discuss so you can develop key messages to convey that are on brand with your firm. Repeat, reiterate and restate these talking points throughout the interview to increase the likelihood that your messaging is understood and incorporated into the article.

Conducting the Interview

During an interview, even if you are nervous, make a conscious effort to speak slowly and concisely, and focus on answering just the particular question at hand. Key messages can get lost in too much detail and technical information. It’s not the reporter’s job to make you look good, but you can make yourself look good by providing clear and thoughtful information.

It’s also a good idea to pause briefly to gather your thoughts before answering a question. If you don’t know the answer or don’t want to or can’t respond, be honest. It is okay not to answer every single question and legal reporters understand client confidentiality and permission issues. You can also try to point them to a colleague who is better suited to speak to a particular topic.

On the other hand, journalists look to lawyers for certain knowledge and experience. Reporters need to understand the full picture to write their best coverage, so don’t be afraid to educate or set the record straight on particularly complex matters or issues. But also know when to stop, and don’t keep talking just to fill silence.

Also, keep in mind that the world is increasingly becoming more digital — especially since most of us are now working from home — and short-form content continues to grow in popularity. Readers are accustomed to scanning feeds and digests for news that is delivered at a glance. When acting as a source for the media, it is valuable to be able to deliver succinct and pertinent comments for those journalists who do not have the word space for long articles.

Post-Publication 

After a story is published, be sure to let the reporter know if you are pleased with the piece and keep in contact to build the relationship. If an article contains factual mistakes or erroneous information, let the reporter know to fix it or print a correction. But recognize that, if there is any debate as to the accuracy of the material, the power over revisions ultimately remains with the journalist and his or her editor or publisher.

The fundamentals of working with the media are the same as they have always been, even with the changes in the world of journalism from the Internet and social media. Understanding these basics will go a long way to securing more media placements, strengthening your public relations initiatives and generating greater success for you and your firm.

© Copyright 2008-2020, Jaffe Associates
ARTICLE BY Rachel Sisserson of Jaffe
For more articles on the legal industry, visit the National Law Review Law Office Management section.

Vehicle Inventory Historically Low

There can be many impediments to buying a new vehicle. COVID has certainly created a wide variety of barriers to the manufacturing and sale of a new vehicle.  Supply chain disruptions and distressed supplies, emergency orders inhibiting the ability to meet in person, not to mention the general recession across the United States and the world.  Add a new one for the industry to deal with: low inventory.

Yes, vehicle inventory has dropped to historic lows. Inventory of new cars dropped as low as a 62 day supply this summer.  This is well below the mark of 79 days from July 2019. Some large OEMs had inventory supply of below 40 days. When COVID hit in March, dealers had 3.4 million vehicles in inventory.  Now, that number is down to 2.2 million. This is kept sales rolling and led to some profitable months for dealers and the industry.

Not surprisingly, truck inventory pulled those averages down. Also not surprisingly, as inventory dropped, prices rose (recall your supply/demand economics classes). Low inventory does not just mean less vehicles to sell, but less variation of those vehicles is available. Most people can think of their top five items that they want in a new car, but those top five items are not always the same. This means that even if  a consumer wants to buy a vehicle, they may not be able to buy what they want. “It’s not only an issue of do we have enough overall inventory, but do we have the right inventory,” Charlie Chesbrough, senior economist for Cox, said on a call discussing Cox’s auto sales forecast.

And, it is October. Dealers should be striking deals to get 2020 models off the lot and makes space for 2021 models.  2021 models may not actually show up until 2021.  That is unheard of. With the 2021 model year part of an ongoing transition in the industry – multiple transitions – it might be the shortest, least interesting model year in decades. There are transitions to power trains (electric), transitions to autonomous levels, and transitions in the entire sales structure of the industry (online).  As of now, only 3% of inventory is new model years, compared to what should be 25% at the same stage.

As it is, sales in 2020 are expected to end a lengthy string of exceeding 17 million vehicles passing through North America’s showrooms. All things considered, sales approaching 14 million vehicles is actually quite impressive. But the lack of inventory now, and in the pipeline, combined with the ongoing challenges in production and employment due to COVID do not bode well for 2021 seeing any kind of quick turnaround for the industry.

And, there is an election. The regulatory and business environment could be almost anything 60 days from now, or 90 days, or 180 days. Predictability for the automotive industry has been hard to come by recently, and this election season has not helped.  At the end of the day, the automotive industry is no more immune from the craziness of 2020 (and maybe 2021) as most other industries.

© 2020 Foley & Lardner LLP
For more articles on cars, visit the National Law Review Utilities & Transport section.

This is Big: Visa Pathway Opens for Foreign Workers Seeking H-1B; H-2B; L-1 and J-1 Visa Stamps

An important court ruling by Judge Jeffrey S. White of the U.S. District Court for the Northern District of California has opened a visa pathway for temporary workers and their employers.

On June 22, 2020 President Trump issued a Presidential Proclamation 10052 (“Visa Ban”) which suspended the issuance of four types of visas:  H-1B; H-2B; L-1 and J-1, and also prohibited the admission into the U.S. until at least December 31, 2020 of persons subject to this Visa Ban.  Our past alerts on this Visa Ban may be accessed here.

The President claimed that he issued this Visa Ban purely for domestic economic reasons: to protect the U.S. labor force in the wake of the pandemic. But there is a strong argument that the President overstepped his authority in issuing this Visa Ban, since the underlying rationale of this Proclamation related to domestic policy-making (as opposed to keeping immigrants out of the U.S. for national security reasons).  Further, by a stroke of his pen, the President wiped out the availability of four categories of work visas specifically enacted into law by Congress.

Because the Proclamation allows for such limited exceptions to its broad reach, this Visa Ban has adversely impacted thousands of employers and temporary workers across the United States.  People who are subject to it simply cannot get L-1 or H-1B visa stamps at US Consulates abroad while the ban is in place (unless they fit into an exception/exemption based on the nature of their work).

As noted above, yesterday, the U.S. District Court for the Northern District of California upheld a legal challenge to this Visa Ban filed by plaintiffs including Intrax, Inc., the U.S. Chamber of Commerce (AmCham); the National Association of Manufacturers (NAM), the National Retail Federation, and TechNet.  The above-referenced association plaintiffs had filed the lawsuit on behalf of their association members claiming that the Proclamation exceeded the President’s authority and that it violated the Administrative Procedures Act (APA).   Now that the federal court in California has enjoined this Ban, members of the plaintiff associations can benefit from the injunction.  This means if an employer can show it is a member of one of these associations, or becomes a member of one of them, it can argue that the injunction applies both (a) when its employees apply for a visa abroad in one of these categories, and (b) when seeking to enter the U.S. in one of these otherwise banned visa categories.  

Joining a Plaintiff association is a straightforward matter.  For example, a company can join the American Chamber of Commerce by paying a fee of $250. U.S. Consulates should honor proof of membership in a plaintiff association in considering visa applications for one of these impacted visa categories.

It is rare to be able to take advantage of a legal ruling in this way, and all U.S. employers who depend upon their valued H-1B, H-2B, L-1 and J-1 workers, should immediately try to leverage this opportunity presented by this injunction.

©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

ARTICLE BY Susan J. Cohen of Mintz
For more articles on visas, visit the National Law Review Immigration section.

DHS Expands Use of Biometric Data in Immigration

Last week, the Department of Homeland Security (“DHS”) announced plans to expand the use of biometric data in determining family relationships for immigration purposes. A proposed rule with the new protocols for biometrics use is expected to be published soon. This rule is also said to allow more uses of new technology as they become available.

The Use of Biometric Data in Immigration

The proposed rule will give the DHS the authority to require biometrics use for every application, petition, or related immigration matter. The current practice by the United States Citizenship and Immigration Services (USCIS) requires biometrics only for applications that require background checks. This new rule is intended to give the DHS broad authority to use biometrics technology. The DHS can use voiceprints, iris scans, palm prints, and facial photos, as well as additional technologies developed in the future.

“As those technologies become available and can be incorporated as appropriate, it gives the agency the flexibility to utilize them. And then it also would give the agency the authority down the road, as new technologies become available and are reliable, secure, etc., to pivot to using those, as well,” said one USCIS official. And while children under age 14 are now generally exempt from the collection of biometric data, the proposed rule will also remove the age restriction.

DNA can be collected by the agency to verify a genetic relationship where establishing a genetic or familial relationship is a prima facie requirement of receiving an immigration benefit. Though the raw DNA will not be stored by the DHS, the test results will be saved in the immigrant’s Alien file, also known as the “A-file.” The A-file is the official file that the DHS maintains with all of the immigrant’s immigration and naturalization records. Any such information collected may be shared with law enforcement, but there is no procedural change in other agencies gaining access to the A-files.

Reactions From Immigration Leaders

The additional collection of biometric data will not result in an increase in existing filing fees, as the cost is covered under new filing fees set to go effect October 2, 2020. The DHS has emphasized that the biometrics rule is to be given top priority; nevertheless, it will undergo the standard review process.

This proposed rule quickly drew severe criticism from pro-immigration activists. Andrea Flores from the American Civil Liberties Union called it an “unprecedented” collection of personal information from immigrants and U.S. citizens. She said, “collecting a massive database of genetic blueprints won’t make us safer – it will simply make it easier for the government to surveil and target our communities and to bring us closer to a dystopian nightmare.”

DHS Acting Deputy Secretary Ken Cuccinelli welcomed the rule, stating that “leveraging readily available technology to verify the identity of an individual we are screening is responsible governing.” He added that “the collection of biometric information also guards against identity theft and thwarts fraudsters who are not who they claim to be.”

©2020 Norris McLaughlin P.A., All Rights Reserved
For more articles on DHS, visit the National Law Review Immigration section.

App Developer Chronicles His Saga With Apple’s ‘Anti-Competitive’ App Store

In January 2018 Apple investors complained publicly about the lack of parental controls on their popular devices. At one point even CEO Tim Cook expressed concern about the addictive nature of social media. Vancouver-based app entrepreneur Justin Payeur saw this as validation for the Boomerang Parental Control app he was developing.

What is really needed, apparently, is an app to move apps through the Apple Store app approval process. Reasons for rejecting and requiring changes to the app were numerous, varied, changing, and frustrating. The whole ordeal can drag out for years. That was Payeur’s experience as he chronicled it in an open letter on the Boomerang blog, complete with the text of email exchanges with the Apple app review team and emails to Tim Cook. The most consistent bone Apple picked with the app was that private consumer data could be shared or compromised. Developers aren’t so sure about that. Apple also didn’t like an app that controlled or shut off Apple’s own apps, like Safari, based on parents’ settings.

In June 2018 Payeur was first told that the app didn’t comply with one or more of the App Review Guidelines. He was informed that more time was needed for review and that the use of Mobile Device Management (MDM) was no longer allowed. After some fixes, he was told via message that the app still installed MDM profiles for unapproved purposes. “Specifically, your app blocks or restricts access to third-party apps using MDM,” Apple said. Payeur appealed and was again rejected because, he was told, installing MDM profiles for parental controls was not appropriate for the App Store: “Apps may only use public APIs and must run on the currently shipping OS.”

Payeur continued to log his ping-pong journey with Apple that continued through 2019. During that time Apple requested more information and more time to review. Apple offered vague new reasons for rejecting versions of the app, e.g. “false information and features.” and also cited improper mention of Android because that violates Apple’s metadata guidelines.

‘The timing was suspect’

“We did not use any private APIs or any framework in unintended uses,” Payeur wrote in his January 2020 open letter. “So our internal conclusion … was simple: Apple wanted us out of the App Store …” He said the timing was suspect; Apple was about to launch iOS 12 with screen time controls.

Abandoning development of the app for child devices, Boomerang focused on the parent mode because many of its customers were parents with iPhones and kids with Androids, or the other way around. Revenues for the app tanked and users didn’t like it.

Then the press lit a fire.

In December 2018 it was a TechCrunch piece about the challenges facing third-party developers of iOS parental control apps. In April 2019 the New York Times wrote about Apple’s anti-competitive approach to these apps, to which Apple responded that several of the rejected apps posed privacy risks. Payeur found other developers experienced the same treatment from Apple.

One of those developers was OurPact, a competitor to Boomerang in the parental control app arena. In an article published on Medium.com in May 2019, OurPact also detailed its interactions with Apple, which were very similar to what Boomerang experienced. OurPact also was met with Apple’s alleged privacy concerns. OurPact was unconvinced. According to the developer, Apple stated that “its own MDM technology, used by millions, poses risks to user privacy and can be abused by hackers. This stands in contradiction to the fact that MDM technology was initially developed by Apple to ensure security of private data on remotely managed devices.”

“Apple alone issues certificates to third parties to communicate with their MDM servers, and Apple themselves are responsible for sending all MDM commands to user devices.” OurPact went on to say, “OurPact does not have access to any of this private information via MDM. It is impossible for us, hackers, or anybody else to obtain it. Apple is the only one who has access to and uses this data.”

In June 2019 Boomerang was invited to re-submit its parental control app and was told there was a new Mobile Device Management Capability form to complete. The updated app was approved with MDM, but before it was released Apple again said the app violated the rules. This time it was because the app contained Google Analytics, which could grab sensitive data, Apple maintained.

“This was false,” Payeur said. He fixed the app, pushed the update, then was told the app was in violation for using Google Firebase, which Apple again said risked disclosure of sensitive information. After more back and forth and more waiting, his appeal was rejected. When he removed any analytics, Boomerang Parental Control was approved in October 2019.

Are you sensing a pattern?

However, Apple changed its policies yet again, saying the app was not permitted to block Safari and the App Store itself. Apple was requiring “supervised mode” used by governments and large organizations, but the app timed out these applications based on parental controls, or when parents wanted the only browser on their kids’ phones to be the SPIN Safe Brower. The Boomerang app no longer has these features.

Today, Payeur says that parents are not aware that iOS includes screen time features because it’s buried in the device settings. Parents still have a mix of devices in their families, of course.

“Apple has shown that they will change their minds if there is negative press about them. These are some of the reasons why we continue to recommend Android devices for your kids first smartphone (and you can still control them from your iPhone!). … Any way you slice it, Apple continues to be anti-competitive,” Payeur wrote.

You might think it would be unwise for the owner of a small business to come out so vehemently against such a dominant player. So many developers count on their Apple relationship and the broad distribution it offers through its monopoly on apps on Apple devices to generate revenue. When it comes to Payeur, he told the MoginRubin Blog that he figures he has little to lose since he has turned his attention to Android and only updates his existing Apple apps.

“They neutered our app through all their guideline changes,” he said. “And people (parents) are unhappy that they can’t access on their iPhones the same or similar features that we offer on Android.”

“There are a lot of app developers and they are not multi-million businesses,” Payeur told us. “We provide these apps to do good. That was the biggest frustration. Apple labeled us as bad players with their user privacy angle. That rubbed me the wrong way. At no point did we create our service to [mine and sell user data]. We used Apple’s own technology, not ours, that’s used across the world. We got creative to create parental controls. They weren’t being up front.”

‘One of the most beloved companies in the world.’

The people at OurPact also addressed the David and Goliath nature of the playing field. They said they respect Apple as “one of the most beloved companies in the world,” but they “made a mistake” and “sometimes truth has to be spoken to power,” OurPact wrote. “Given that there are no privacy issues with properly vetted MDM apps like OurPact being on the App Store, we humbly request that we are reinstated and allowed to continue providing our million users with the service they love and depend on. If Apple truly believes that parents should have tools to manage their children’s device usage, and are committed to providing a competitive, innovative app ecosystem, then they will also provide open APIs for developers to utilize.”

Boomerang and OurPact are part of a group of developers who are calling for a Screen Time API, a cross-platform API that would allow developers to provide apps that monitor and control time spent on devices. “It aims to provide a generic API that can be used for a wide range of use cases, from personal health to remote parental controls to social media monitoring. It also aims to do this in a way that is respectful of the device owners privacy, by not providing more information than is necessary and using the platforms permissions system to access data.” The document they published shows how the API would look for iOS, MacOS and tvOS.

Global concerns.

Apple’s management of its store hasn’t just raised concerns in the U.S.

The European Commission recently began investigating whether Apple is fairly applying its rules. The investigations follow separate complaints by Spotify and by an e-book/audiobook distributor on the impact of the App Store rules on competition in music streaming and e-books/audiobooks. Margrethe Vestager, the EC’s competition policy chief, said, “Apple sets the rules for the distribution of apps to users of iPhones and iPads. It appears that Apple obtained a ‘gatekeeper’ role when it comes to the distribution of apps and content to users of Apple’s popular devices. We need to ensure that Apple’s rules do not distort competition in markets where Apple is competing with other app developers ….”

Even in Russia, not exactly a bastion for ethical behavior, Apple’s conduct came to the attention of the country’s Federal Antimonopoly Service when Russian antivirus software developer Kaspersky complained in March 2019. According to CNET and ZDNet, the Russian regulator last month found Apple abuses its power over iOS apps because iPhone and iPad owners must install them from Apple’s App Story. “Kaspersky alleged that it was forced to remove features like app control and Safari browser blocking from its Safe Kids iOS app to reduce its ability to compete with Apple’s own usage-monitoring Screen Time feature,” CNET reported. The irony of a Russian agency charging anyone with abusing power shouldn’t be lost on anyone.

Back in the USA, The Washington Post published an article last year titled, “How Apple uses its App Store to copy the best ideas.” In it, the paper wrote, “Developers have come to accept that, without warning, Apple can make their work obsolete by announcing a new app or feature that uses or incorporates their ideas. Some apps have simply buckled under the pressure, in some cases shutting down.”

Asked about this article, Payeur told us in an email, “The tough part is that apps are making money. Apple copies them and offers the same or similar functionality for free, built into their platform. It’s tough to compete with ‘good enough.’”

It’s especially tough when you’re developing apps on your own dime and can’t predict the changing rules of the game.

Edited by Tom Hagy for MoginRubin LLP.

© MoginRubin LLP
For more articles on Apple, visit the National Law Review Communications, Media & Internet section.

Tracey Goldvarg joins the National Law Review as Business Development Director

CHICAGO (PRWEB) SEPTEMBER 15, 2020

The National Law Review (NLR), one of the highest volume business law news services in the United States, announced that Tracey Goldvarg joined the company as Business Development Director. Goldvarg brings extensive legal business development and B to B publishing experience from her previous leadership roles at American Lawyer Media (ALM), Today’s General Counsel, and Inside Counsel. Goldvarg’s wealth of knowledge and legal industry know-how will enhance the National Law Review’s initiatives involving various advertising, promotional and other new product offerings.

The National Law Review is a leading source of information for companies and individuals looking for guidance on compliance and regulatory matters. The NLR’s COVID-19 pandemic coverage garnered over 4.3 million readers in both March and April of this year, and the NLR’s pandemic coverage continues following Congressional and Executive directives and local Coronavirus mandates.

Goldvarg joins the National Law Review at an exciting time, when the company is poised for exponential growth as traffic levels to the National Law Review have tripled in the last year.

Jennifer Schaller, Managing Director of the National Law Review:

“We are excited to welcome Tracey to our team. Her depth of experience in the publishing and in the legal and financial services fields is invaluable as we continue to grow and develop new markets, expand coverage in new areas and amplify our product offerings to our clients and in new verticals. Tracey’s upbeat attitude and exceptional commitment to client service is just what we need to keep our momentum going.”

Goldvarg:

“I am thrilled to be joining such a dynamic and nimble organization at such a pivotal time in its growth. I look forward to continuing our on-going collaboration and welcome the opportunity to join a women-owned organization, that values the insights and talents of its team-members and has such high standards of customer service to its clients. Their client retention numbers are unparalleled.”

The NLR is a certified women-owned business enterprise that reports breaking legal news on emerging and on-going business issues ranging from business immigration to the regulatory and operational challenges of the Coronavirus pandemic.

The National Law Review’s U.S based editorial team publishes around the clock and optimizes legal thought leadership for search engine visibility, and for distribution via news syndication partners. The NLR also promotes our published content through their extensive social media network, and to their over 135,000 daily newsletter subscribers.

About the National Law Review: The National Law Review is a daily legal news website with a mission to provide objective, reliable and practical litigation, legislative and administrative legal news and analysis through partnership with law firms, other legal and business organizations and our own staff journalists. The NLR’s online platform was developed by corporate attorneys and is the online descendant of a legal publication tracing its roots back to 1888. With the talents of our own writers and contributing authors, the National Law Review has grown into one of the highest volume business law publications in the U.S., with an average of 2 million visitors each month. Visit us at www.NatLawReview.com.

Contact:

JENNIFER BUECHELE SCHALLER
E. EILENE SPEAR
National Law Review / National Law Forum
info@natlawreview.com
708-357-3317

ITC to Investigate Supply Chain Challenges of COVID-19 Products

On August 21, the U.S. International Trade Commission (ITC) stated that it will conduct an investigation and prepare a report containing more detailed information on supply chain challenges and constraints for COVID-19-related products, including medical devices, personal protective equipment, and pharmaceuticals. Specifically, ITC’s investigation and report will provide information on:

  • Key U.S. industry sectors producing COVID-19-related goods, including information on U.S. production, employment and trade.
  • Detailed case studies on key products (e.g., N95 respirators, ventilators, vaccines and COVID-19 test kits), particularly products with reported shortages in the first half of 2020 due to supply chain fragility, blockages or barriers.

The case studies will draw upon all available information, including information on key products, the U.S. market and manufacturing industry, and U.S. imports of finished goods and inputs. The case studies will also examine supply chain challenges and constraints, including factors (such as regulatory requirements) that may have inhibited domestic production and foreign trade barriers and restrictions affecting U.S. imports of finished goods or inputs needed for domestic production.

Companies importing COVID-19 products that are currently subject to duties — either based on their tariff classification or pursuant to the Section 301 retaliatory duties against Chinese origin goods — may want to take this opportunity to reiterate the impact those duties have on the U.S. health care industry, production of domestic products, and U.S. consumers. These companies may also want to draw attention to any shortages or inability to procure certain raw materials or finished products domestically. The ITC’s request for comments also presents a renewed opportunity to advocate on the breadth of COVID-19 products that may be outside of the ITC’s initial review. Also, for those companies that submitted Section 301 COVID-19 exclusion requests for products imported from China, this may be another opportunity to advocate that the administration exclude your product from Section 301 duties.

The investigation and report are intended to build on a first investigation by ITC that identified and examined tariffs on products needed to combat COVID-19. The purpose of the first investigation was to assist the U.S. House of Representatives’ Committee on Ways and Means and U.S. Senate Committee on Finance in addressing shortages in the domestic supply chain. The first report was released by the ITC on May 4, 2020.

The final report for the current investigation is scheduled to be completed by December 15, 2020 and will be made available to the public. There will also be a virtual public hearing in connection with the investigation on September 23, 2020. Requests to appear at the public hearing should be filed with the ITC Secretary by September 11, 2020.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.
For more articles on trade, visit the National Law Review Antitrust, Mergers, FTC & Unfair Competition News section.

SEC Adopts Expansion of “Accredited Investor” Definition

On August 26, 2020, the U.S. Securities & Exchange Commission (SEC) adopted amendments to Rule 501, Rule 144A and other related rules (the Amendments) to expand the definition of “accredited investor” under the Securities Act of 1933 (the Securities Act). The amendments were adopted largely as proposed and broaden the scope of natural persons and entities that may qualify to participate in private offerings of securities that are exempt from registration under the Securities Act.

In particular, the “accredited investor” designation will now include the following:

  • Natural persons holding certain professional certification and designations. The SEC will periodically issue orders designating those professional certificates, designations or credentials that, when held by a natural person, would qualify such person as an accredited investor. Contemporaneously with the Amendments, the SEC designated holders in good standing of the Series 7, Series 65 and Series 82 licenses as qualifying for accredited investor status. In evaluating additional professional designations for qualifying status, the SEC will consider a non-exhaustive list of attributes established by the Amendments.
  • “Knowledgeable Employees” of private funds as defined under the Investment Company Act, but only with respect to investment in such private fund. A Knowledgeable Employee’s spouse will also be considered an accredited investor with respect to joint investments in the private fund.
  • Certain enumerated entities, including:
    • federal- or state-registered investment advisers and exempt reporting advisers, regardless of the level of assets under management;
    • rural business investment companies (RBICs), as defined in Section 384A of the Consolidated Farm and Rural Development Act;
    • limited liability companies that have total assets in excess of $5 million and were not formed for the purpose of acquiring the securities offered1 ; and
    • any entity with at least $5 million in investments (as defined under the Investment Company Act of 1940) that has not been formed for the purpose of investing in the securities offered, in order to encompass entities such as Indian tribes, foreign entities and local government bodies that were not previously covered by Rule 501.
  • “Family offices” and their “family clients,” each as defined under the Advisers Act, provided the family office has at least $5 million in assets under management, was not formed for the purpose of acquiring the securities offered and was directed to make the investment by a person who has such knowledge and experience in financial and business matters such that the family office is capable of evaluating the merits and risks of the investments.

The Amendments would also clarify that spousal equivalents can pool finances when determining qualification as an accredited investor and update the definition of “qualified institutional buyer” under the Securities Act to conform with the new accredited investor definition.

The expansion of the accredited investor definition has many implications for asset managers, including updates to offering and subscription documents and questionnaires, consideration of expanded options for funding GP commitments via the expanded pool of knowledgeable employees and affiliated professionals and evaluation of fund-raising opportunities. Commissioners adopted the amendments on a 3-2 vote, with commenters disagreeing with the SEC’s decision not to index the wealth thresholds, which were initially adopted in 1982, for inflation.

The Amendments will go effective 60 days after publication in the Federal Register.

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1 While Rule 501 did not explicitly include LLCs meeting these requirements prior to the Amendments, the SEC historically has taken the position that such LLCs qualify as accredited investors.

© 2020 Vedder Price
ARTICLE BY Robert M. Crea, Joseph M. Mannon, and Adam S. Goldman of Vedder Price.
For more SEC news, visit the National Law Review Securities, SEC, & Financial Institution Law News section.

DOL Issues Additional FFCRA Guidance as Schools Reopen

On Aug. 27, 2020, the U.S. Department of Labor (DOL) issued three new Frequently Asked Questions (FAQ) related to the reopening of schools in various formats and employee paid leave eligibility under the Families First Coronavirus Response Act (FFCRA).

The FFCRA requires employers with fewer than 500 employees to provide up to 80 hours of paid leave to employees for certain reasons related to the 2019 novel coronavirus (COVID-19) pandemic under the Emergency Paid Sick Leave Act (PSLA) and expands the Family and Medical Leave Act (FMLA) to provide employees up to 12 weeks of emergency job-protected leave to care for a child as a result of school or child care closings due to a public health emergency. The recent FAQ address caregiver leave associated with the closure of schools, which, if eligible, entitles employees to two-thirds’ pay up to $200 per day ($10,000 in aggregate).

NEW FAQ ADDRESSING SCHOOL CLOSURES

The following is an overview of DOL’s three newly issued FAQ regarding school closures:

A child attends a school operating on an alternate day basis

The DOL confirmed in FAQ #98 that an employee will be eligible for paid leave on an intermittent basis to accommodate a hybrid school schedule whereby children attend school both in-person and remotely. For purposes of the FFCRA and its implementing regulations, the school is effectively closed on days that a child cannot attend in person and leave is available on remote-learning days. The DOL cautions in its guidance that even under these circumstances, leave is only available if no other suitable person is available to care for the child.

A parent chooses remote learning when in-person instruction is available

FAQ #99 makes clear that FFCRA leave is not available to take care of a child whose school is otherwise open for in-person attendance. As a result, if a child needs care because the employee chose a virtual or remote school option, the employee is ineligible for leave. The DOL notes, however, that if the child is home due to a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, an employee may be eligible to take paid leave to care for the child.

School begins with remote learning, but shifts to in-person instruction if conditions change

FAQ #100 clarifies that leave eligibility will change as schools adopt different teaching models. Using the example of a school that starts virtually with the hope of returning to in-person teaching in the future, the DOL explains that an employee will be eligible for leave during the remote learning period for so long as the school remains closed, but eligibility will end when the school converts to in-person instruction.

ADDITIONAL FFCRA RESOURCES

Consider reviewing the following resources to learn more about the FFCRA:

Copyright © 2020 Godfrey & Kahn S.C.

ARTICLE BY Margaret R. Kurlinski and Christine McLaughlin of Godfrey & Kahn S.C. 

For more on DOL guidance, see the National Law Review Labor and Employment Legal and Regulatory Law News section.