January 2016 Tax Credits & Incentives Update

tax man liftingwiderHMB Tip of the Month:  As provided in two of the cases highlighted in this monthly update, a taxpayer that meets all of the criteria of a statutory tax credit (in which funding is available) may be successful in court when it faces a challenge to its eligibility to the credit from the jurisdiction that administers the credit.  If a taxpayer faces such a challenge and the denial of the credit is material to the taxpayer, a taxpayer should explore its options with a trusted consultant.

Recent Announcements of Credit/Incentives Applications and Packages

Massachusetts– Global business giant General Electric Co. announced January 13 that it is relocating its corporate headquarters from Connecticut to Massachusetts as part of a deal that includes a $145 million state and local tax incentive package.  GE will begin relocating its Fairfield, Connecticut, corporate headquarters to Boston this summer and expects to complete the move by 2018.

Connecticut’s Governor Malloy offered an incentive package to GE in August 2015, but it apparently was not enough to persuade the company to stay.  The move will bring 800 jobs to Boston, specifically to the Seaport District.  Massachusetts offered up to $120 million through state grants and other programs, and the city offered up to $25 million in property tax relief.

Additional incentives include $1 million in grants for workforce training; up to $5 million for an innovation center to forge connections between GE, research institutions, and the higher education community; commitment to existing local transportation improvements in the Seaport District; appointment of a joint relocation team to ease the transition for employees moving to Boston; and assistance for eligible employees looking to buy homes in Boston.

Legislative, Regulative and Gubernatorial Update

Alaska- Alaska Governor Walker released legislation (HB 246 and HB 247) on January 19 detailing his proposal to end many of the state’s oil tax credits and establish a low-interest loan program to support exploration and production.  Jerry Burnett, deputy commissioner of the Alaska Department of Revenue, said current oil prices and production levels have forced a reconsideration of how the state encourages oil industry investment. “We can end up paying 55 to 65 percent of the project during development and 85 percent of exploration [costs],” he said. “It’s a fairly generous program. It seemed like a good idea when oil was $100 a barrel.”  With oil prices currently at around $27 per barrel, the Walker administration wants to pivot away from tax credits — many of which the state repurchases from companies — and instead focus on creating a loan program to back companies developing petroleum resources.

Illinois–   Several bills were introduced in the Illinois House on January 27.

HB 4545 creates the Manufacturing Job Destination Tax Credit Act and amends the Illinois Income Tax Act. It provides for a credit of 25% of the Illinois labor expenditures made by a manufacturing company in order to foster job creation and retention in Illinois. The Department of Revenue is authorized to award a tax credit to taxpayer-employers who apply for the credit and meet the certain Illinois labor expenditure requirements. The bill sets minimum requirements and procedures for certifying a taxpayer as an “accredited manufacturer” and for awarding the credit.

HB 4544 would amend the Illinois Income Tax Act to authorize a credit to taxpayers for 10% of stipends or salaries paid to qualified college interns. The credit is limited to stipends and salaries paid to 5 interns each year, and limits total credits to $3,000 for all years combined. The bill provides that the credit may not reduce the taxpayer’s liability to less than zero and may not be carried forward or back.

Finally, HB 4546 would amend the Service Occupation Tax Act and the Retailers’ Occupation Tax Act to provide that, by March 1, 2017, and by March 1 of each year thereafter, each business located in an enterprise zone may apply with the Department of Commerce and Economic Opportunity for a rebate in an amount not to exceed 1% of the amount of tax paid by the business under the Acts during the previous calendar year for the purchase of tangible personal property from a retailer or serviceman located in Illinois. The legislation provides that the Department of Commerce and Economic Opportunity shall pay the rebates from moneys appropriated for that purpose.

Indiana– SB 125 introduced on January 5 would resurrect a program that has struggled to maintain political support since it was proposed in 2005. The bill would allow a refundable credit for qualified in-state production expenditures of at least $50,000. The program would be open to producers of films, television programs, audio recordings and music videos, advertisements, and other media for marketing or commercial use. It excludes obscene content and television coverage of news and athletic events.

For expenditures of less than $6 million, the credit would be equal to 35 percent of those expenses, or 40 percent of expenditures in an economically distressed location. For qualified production expenditures of at least $6 million, the Indiana Economic Development Corporation would be tasked with setting the credit level, which could not exceed 15 percent. Those credits would also need to be preapproved by the agency.

The bill takes a broad approach to defining expenditures but excludes wages, salaries, and benefits paid to directors, producers, screenwriters, and actors who do not live in Indiana. The program would be capped at $2.5 million annually and sunset at the end of 2019. It also includes clawback provisions preventing taxpayers from claiming unused credits and requiring them to repay any credits that have already been claimed if they fail to satisfy the bill’s conditions.

Maryland- On January 27, Maryland Governor Hogan proposed a series of education-focused legislative proposals including an education tax credit. The proposed tax credit would be provided to private citizens, businesses, and nonprofits that make donations to public and non-public schools to support basic education needs such as books, supplies, technology, academic tutoring, tuition assistance, and special needs services. The credit would also target the promotion of pre-K programs and enrollment. The credit would be awarded through the Department of Commerce with the total level of credits phased in over three years to $15 million in fiscal year 2018.

Massachusetts– On January 27, Massachusetts Governor introduced legislation (H 3978) which would restore the film tax credit to the structure when the credit was introduced in 2005 and use the revenue generated to increase the annual cap on the low-income housing tax credit by $5 million, and to phase-in over four years the use of single-factor apportionment for all corporate taxpayers who do business in more than one state.

New Jersey– Governor Christie conditionally vetoed on January 11 two Senate bills that would have renewed the recently expired film tax credit program.  The vetoed Senate bills, S 779 and S 1952, would have renewed the recently expired film tax credit program, funding the program at $60 million annually for seven years.  The film tax credit program that expired in 2015 allowed production companies to claim up to a 20 percent tax credit on expenses.

In his veto message, Christie called the bills expensive and said they offer “a dubious return for the State in the form of jobs and economic impact, and that I believe we should consider, if at all, during the upcoming budget negotiation process.”

Senate Democrats issued a joint statement claiming that Christie supports tax credits for big companies “but when it comes to an industry that helps small local businesses he looks the other way.” The senators said that by not reauthorizing the film tax credit program, Christie is starving the film industry in New Jersey and making the state uncompetitive with neighboring states.

New Jersey– L. 2016, S2880, effective 01/19/2016, provides up to $25 million in Economic Redevelopment and Growth Grant (ERG) tax credits to Rutgers, the State University of New Jersey, for eligible projects including buildings and structures, open space with improvements, and transportation facilities. The law also raises the ERG program cap from $600 million to $625 million.

New Jersey– L. 2016, S3182, effective 01/19/2016, permits a 2-year extension for a developer of a “qualified residential project” or “qualified business facility” to submit documentation to the New Jersey Economic Development Authority supporting its credit amount under the Urban Transit Hub Tax Credit program. The law also provides an additional two years for developers to submit information on the credit amount certified for any tax period, the failure of which subjects the amount to forfeiture. In addition, the law permits a one-year extension for a developer of a qualified residential project to submit documentation of having received a temporary certificate of occupancy to receive tax credits under the Economic Redevelopment and Growth Grant program. The deadline for a business to submit documentation that it met the capital investment and employment requirements under the Grow New Jersey Assistance Program (for a credit applications made before July 1, 2014), is extended to July 28, 2018.

New Jersey– L. 2016, S3232, effective 01/11/2016, allows certain businesses that have previously been approved for a grant under the Business Employment Incentive Program (BEIP) to direct the New Jersey Economic Development Authority to convert the grant to a tax credit. The law provides an alternative means to satisfy the backlog of unpaid grant obligations, approved before the phase out of the BEIP, due to fiscal constraints. Requests to convert grants to tax credits must be made within 180 days of the law’s enactment. The law also establishes a priority for issuing the tax credits favoring older outstanding grant obligations.

Virginia– The Virginia Department of Historic Resources has amended regulations 17 VAC §§ 10‐30‐10 through 10‐30‐160, effective February 10, 2016. The numerous amendments relating to the historic rehabilitation tax credit include the requirement to provide certain information on the “Evaluation of Significance” on the Historic Preservation Certification Application. The requirement for an independent audit reporting and review procedures is increased to $500,000 or greater, and for projects with rehabilitation expenses of less than $500,000 an agreed upon procedures engagement report by an independent accountant must be used. The fee structure for processing rehabilitation certification requests has been revised, and the fees charged by the Department for reviewing rehabilitation certification requests have also been increased. The entitlement to the credit has been changed from January 1, 1997 to January 1, 2003; consequently, the section on projects begun before 1997 has been updated to reflect the new 2003 date. The amendments also added or modified certain definitions.

Washington– With the backing of unions, HB 2638 was introduced on January 18 which would require Boeing to keep its in-state employment levels near a 2013 baseline for the company to claim the full value of a reduced business and occupation (B&O) tax rate and the B&O tax credit for aerospace product expenditures.

The legislation, similar to the failed HB 2147 from 2015, is a reaction to what labor and other critics say is the loss of thousands of Boeing jobs in Washington since lawmakers in 2013 extended the aerospace industry tax incentives from 2024 to 2040.

HB 2147 was reintroduced in this session, but HB 2638 is the proposal proponents intend to pursue this year. HB 2638 would set a baseline of 83,295 in-state employees, roughly the same as the company’s 2013 Washington workforce. After Boeing’s workforce falls 4,000 below that level — which has already happened — the value of the tax incentives would be cut in half. If Boeing’s workforce falls to 5,000 fewer than the baseline, the company would pay normal B&O tax rates and lose the ability to claim the tax credit.  HB 2638 is less incremental than HB 2147, which would have increased the B&O tax rate closer to normal by 2.5 percent for every 250 employees below the baseline.

Case Law

California– In a case in which Ryan U.S. Tax Services, LLC (Ryan), a tax advisory and site selection firm, challenged the validity of a regulation concerning contingent fee practitioners advising taxpayers who submit applications for the California Competes Tax Credit, the California Superior Court, Sacramento County, has said that it will grant Ryan’s petition and request for declaratory relief. Cal. Rev. & Tax. Cd. § 17059.2 and Cal. Rev. & Tax. Cd. § 23689 (sometimes hereinafter referred to as the statutes) each set forth 11 factors on which the Governor’s Office of Business and Economic Development (GO-Biz) is to allocate the credit.  GO-Biz also adopted regulations to implement the credit program, including the application process for tax credit allocation. Cal. Code Regs. 10 § 8030(b)(10) requires applicants for tax credits to provide certain information on the tax form, including the name of any consultant providing services related to the credit application, the consultant’s fee structure and cost of services, and whether payment to the consultant is influenced by whether a credit is awarded.

Moreover, Cal. Code Regs. 10 § 8030(g)(2)(H) provides that GO-Biz will evaluate any other information requested in the application, including but not limited to the reasonableness of the fee arrangement between the applicant and any consultant and it further provides that any contingent fee arrangement must result in a fee that is no more than a reasonable hourly rate for services. Ryan contended, among other things, that the regulation is inconsistent with the statutes because it expands the qualifications for tax credit applicants, that is, it adds to the exclusive list of 11 qualifying factors in the statutes a new factor, the amount of consultant fees paid by tax credit applicants. GO-Biz argued that the legislature delegated to it broad authority to fill in the details of the tax credit program, and while the statutes do not explicitly list consultant fees as a consideration, they fall within the scope of the factor that authorizes GO-Biz to consider the extent to which the anticipated tax benefit to the state exceeds the projected benefit to the taxpayer from the tax credit (Cal. Rev. & Tax. Cd. § 17059.2(a)(2)(K); Cal. Rev. & Tax. Cd. § 23689(a)(2)(K)) by ensuring that tax credits are used for job creation and are not unnecessarily diverted to unreasonable consultant fees.

The court agreed with Ryan that the regulation was invalid. Limiting consultant fees does not preserve tax credits or ensure that tax credits will be used to create new, good-paying jobs. The statutes provide the 11 factors to be used in allocating credits. The cost of a consultant’s services is a matter between the taxpayer and the consultant. Even if the statutes are construed as allowing GO-Biz to consider whether consultant fee arrangements are reasonable, the court found that the regulation’s de facto ban on contingent fee arrangements to be arbitrary and not reasonably necessary to carry out the purposes of the statutes because it effectively disqualifies businesses that have contingent fee arrangements with their consultants from receiving the credit. The court will enter judgment in the case after a formal judgment is prepared, approved, and signed. (Ryan U.S. Tax Services, LLC v. State of California, Cal. Super. Ct. (Sacramento County), Dkt. No. 34-2014-00167988, 01/07/2016.)

Kansas– The Kansas Department of Revenue ruled that a third party cannot furnish electric service or enter into a solar power purchase agreement (PPA) with a Kansas homeowner, as the Retail Electric Suppliers Act (RESA) prohibits the furnishing of electric service by any person or company other than the certified public utility for a particular territory, and so it was moot whether the charges a non-utility billed to a Kansas customer were taxable. The Department declined to speculate about the potential answer should the Kansas Legislature sometime authorize non-utilities to enter into PPAs, but the company was encouraged to resubmit the question if it is not directly answered by the legislation should such PPA agreements be legalized. (Kansas Opinion Letter No. O-2016-001, , 01/25/2016 .)

Kentucky– The U.S. District Court for the Eastern District of Kentucky has ruled that a Noah’s Ark-themed tourist attraction cannot be denied sales tax incentives by Kentucky on grounds that the project advanced religion in violation of First Amendment protection from state establishment of religion. The Court found that the religious-based theme park met the neutral criteria for the tax incentives and, therefore, the state could not deny the incentives for Establishment Clause reasons. In addition, in denying the tax incentives, the state violated the Free Exercise Clause of the First Amendment. Consequently, the Court enjoined the state of Kentucky and its Tourism, Arts, and Heritage Cabinet from applying the Tourism Development Act in a way that excludes Ark Encounter from the program based on its religious purpose and message or based on its desire to utilize any exception in Title VII of the Civil Rights Act for which it qualifies concerning the hiring of its personnel.Ark Encounter, LLC, et al. v. Parkinson, et al., U.S. Dist. Ct. (E.D. KY), Dkt. No. 15-13-GFVT, 01/25/2016.

Article By Jennifer Zimmerman of Horwood Marcus & Berk Chartered
© Horwood Marcus & Berk Chartered 2016. All Rights Reserved.

Cuba: Further Easing of the U.S. Sanctions

Following up on the historic changes in 2014 and 2015 to the five-decade U.S. trade embargo on Cuba, the Department of the Treasury’s Office of Foreign Assets Control (OFAC) and the Department of Commerce’s Bureau of Industry and Security (BIS) have announced new amendments to the Cuban Assets Control Regulations (CACR) and Export Administration Regulations (EAR), effective January 27, 2016.

What U.S. Companies Need to Know About the Easing of Restrictions

  1. Payment Terms for Authorized Exports to Cuba No Longer Restricted
    OFAC restrictions have been lifted on payment and financing terms for authorized exports and reexports to Cuba, except for agricultural commodities and items. U.S. banks will be authorized to provide financing by third-country or U.S. financial institutions (e.g., letters of credit, payment of cash in advance, sales on an open account). Payment for agricultural exports will still be limited to cash in advance or financing by third-country banks only. “Authorized exports and reexports” include those authorized under a BIS license exception (e.g., products and materials exported to private sector entrepreneurs under License Exception “SCP” – Support for the Cuban People), as well as export transactions permitted by BIS under a specific license.

  2. Most Cuban Embargo Restrictions Remain in Place
    Although the amendments to the CACR and EAR signify further relaxing of Cuba sanctions, the U.S. embargo on Cuba remains largely in place; most transactions between the U.S. and Cuba continue to be prohibited.

    In addition, a general policy of denial will still apply to exports and reexports of items for use by state-owned enterprises, agencies, or other organizations of the Cuban government that primarily generate revenue for the state. Additionally, applications to export or reexport items destined to the Cuban military, police, intelligence and security services remain subject to a general policy of denial.

  3. More Favorable Licensing Policies for Certain Exports and Reexports
    The following transactions still require a license application, but the chances of approval for such licenses have improved:

Exports to Cuban Government Agencies Meeting the Needs of the People: BIS is now considering, on a “case-by-case” basis, license applications for exports and reexports to Cuban state-owned enterprises and government agencies that provide services and goods to meet the needs of the Cuban people. Previously, such license applications were subject to a policy of denial. The new case-by-case policy applies to items for construction of facilities for public water treatment, electricity or other energy; sports and recreation; agricultural production; food processing; disaster preparedness, relief and response; public health and sanitation; residential construction and renovation; public transportation; wholesale and retail distribution for domestic consumption by the Cuban people; and artistic endeavors.

  • New Policy of Approval for Certain Exports and Reexports: License applications for the following exports and reexports are now subject to a “general policy of approval,” an upgrade from “case-by-case” consideration:

  • Environmental protection items: U.S. and international air quality, water, or coastline

  • Telecommunications items: To improve communications to, from, and among the Cuban people.

  • Civil aviation and commercial aircraft safety items: Those necessary to ensure the safety of civil aviation and safe operation of commercial aircraft engaged in international air transportation, including the export or reexport of civil aircraft leased to state-owned enterprises.

  • Agricultural items: Such as insecticides, pesticides, and herbicides, as well as other agricultural commodities (e.g., tractors and other farm equipment) not eligible for License Exception AGR

  • Commodities and software: To human rights organizations or to individuals and non-governmental organizations that promote independent activity intended to strengthen civil society in Cuba; also to U.S. news bureaus in Cuba whose primary purpose is the gathering and dissemination of news to the general public.

4. Travel Authorized for Additional Purposes Including Film Making 
U.S. persons are still prohibited from traveling to Cuba for tourism, but OFAC now permits travel to Cuba for additional purposes as highlighted below.

  • Travel related to information and informational materials now includes travel for the filming of movies and TV programs, music recordings, and artwork creation.

  • Organization of professional meetings, public performances, clinics, workshops, and athletic and other competitions and exhibitions in Cuba, in addition to the previously authorized attendance at such events.

5. Air Carrier Services Expanded to Permit Code-Sharing and Leasing
U.S. companies can now enter into blocked space, code-sharing, and leasing arrangements to facilitate the provision of carrier services by air, in connection with travel or transportation between the U.S. and Cuba, including such arrangements with a Cuban national.

Article By Global Services of Barnes & Thornburg LLP

© 2016 BARNES & THORNBURG LLP

A Preview of Business Immigration in 2016: H-1B

From proposals to slash the H-1B cap to overhauling the EB-5 investor program, 2016 is already proving to be an interesting year for business immigration. In a series of posts, we will provide an overview of the cases, legislation, and regulations to look out for in the new year. In our first post we will discuss the H-1B visa and proposed reforms. 

A new wave of bills on Capitol Hill may lead to greater scrutiny of the H-1B program for high-skilled temporary workers in 2016. Since November, senators on both sides of the aisle have introduced legislation related to the visa category. One comes from Republican presidential candidate and Senator Ted Cruz (R-TX), who hopes to reform the program by creating a “layoff cool-off period” under which employers could not hire any H-1B workers within two years of layoffs, furloughs, or employee strikes. The “American Jobs First Act of 2015” would also end the Optional Practical Training program, which allows certain foreign students or graduates to temporarily work in the United States. Bill co-sponsor Senator Jeff Sessions, (R-AL), said the H-1B program has become a “backdoor method for replacing American workers.”

Senator Sessions, known as an immigration hardliner, also co-sponsored the “Protecting American Jobs Act” with Senator Bill Nelson (D-FL) to reduce the annual cap on H-1B visas from 65,000 to 50,000. If more than 50,000 petitions are filed within a fiscal year, the bill would require DHS to prioritize workers with the highest wages. “This bill directly targets outsourcing companies that rely on lower-wage foreign workers to replace equally qualified U.S. workers,” stated Senator Nelson. His legislation directly opposes fellow Florida Senator and Republican presidential candidate Marco Rubio’s earlier 2015 bill that would triple the H-1B cap to between 115,000 and 195,000 visas.

Another bipartisan effort comes from Senate Judiciary Committee Chairman Chuck Grassley (R-IA) and Senate Minority Whip Dick Durbin (D-IL), who recently introduced legislation that would greatly reform and increase enforcement of the H-1B program. Their bill would prohibit companies from hiring H-1B workers if they have more than 50 employees and over half are H-1B and L-1 visa holders.

Whether any of these bills will actually pass remains the biggest question for H-1Bs in 2016, particularly as certain bills—and legislators—oppose one another, both in the Senate and in presidential campaigns.

Article By Susan J. Cohen of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Parnia Zahedi assisted with this post.

©1994-2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Behind the Curtain: Shkreli was NOT the Big Story on the Hill Today

Congress’s complex relationship with prescription drugs was on display today in the House of Representatives.  In the House Committee on Oversight and Government Reform (OGR), Martin Shkreli pleaded the 5th at a hearing investigating drug pricing.  Meanwhile, the Energy and Commerce Committee (E&C) held a hearing regarding implementation of biosimilars.  While all the attention will be on the former, the latter was more important, especially for participants in the biosimilar space.

First, the OGR Committee was a media show built around the flamboyant Shkreli.  Shkreli took the 5th when given the opportunity to testify and later tweeted – after being excused from the hearing for refusing to answer any of the Members questions – that the Committee Members were ‘imbeciles’.  The tone of the hearing was very aggressive towards drug pricing and what were described as unsavory business practices. Members were also critical of the FDA generic drug programs.  However, Member interest in strengthening the program to bring competition to the marketplace was clear. Dr. Janet Woodcock, Director of the Center for Drug Evaluation and Research at the FDA,  stated that funds collected as a result of the Generic Drug User Free Amendments (GDUFA) helped expedite the review process and that by October there will be a 10-month review process on all new applications. The Senate HELP Committee held a hearing last week on reauthorization of GDUFA, which will expire next year, and this bipartisan interest, coupled with the prescription drug cost crisis, could lead to increased resources for the FDA review process. Beyond some public shaming of specific drug companies, there was little suggestion of substantive action on drug pricing.

Second, the E&C Committee was less about drug pricing, but more so about the ability of manufacturers to get new biosimilar products to the market. Notably, Committee Members on BOTH sides of the aisle were critical of CMS for trying to price biosimilars more like generic drugs and categorize different products under a single billing code.  They said the CMS ruling undermines the intent of the Biologics Price Competition and Innovation Act of 2010 (BPCIA) by removing incentives for a robust marketplace. Biologics make up a $200 billion market, so the consequences of policy decisions are significant. Members were also critical of delays in approving more biosimilars and issuing guidance on product labeling. Rep. Frank Pallone (D-NJ) asked if additional appropriations would address these problems, to which Dr. Woodcock replied that she’s more concerned the FDA will be unprepared for a rapid expansion of the biosimilar market.

While 2016 may be devoted to campaigning against drug prices, the Committees responsible for the regulatory regimes for drugs are still very focused on preserving the ability of manufacturers to successfully bring drugs to the market.  That is a much bigger deal than the plethora of Martin Shkreli smirks you will be subjected to in the media.

Article By Rodney L. Whitlock of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

©1994-2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Department of Commerce Releases Fact Sheet on EU-U.S. Privacy Shield

As we reported yesterday, the United States and the European Commission have reached a political agreement on a new framework for transatlantic data flows, referred to as the EU-U.S. Privacy Shield.  The U.S. Department of Commerce (“Commerce”) released a fact sheet yesterday to coincide with the announcement of the agreement.

The fact sheet includes a series of bullet points listing ways in which the Privacy Shield (1) “significantly improves commercial oversight and enhances privacy protections,” and (2) “demonstrates the U.S. Commitments to limitations and safeguards on national security.”  On the first point, Commerce states that “EU individuals will have access to multiple avenues to resolve concerns,” including alternative dispute resolution at no cost to individuals.  In addition, Commerce “will step in directly and use best efforts to resolve referred complaints” using a “special team with significant new resources.”  On the second point, the fact sheet references President Obama’s executive actions to enhance privacy protections and oversight relating to U.S. government surveillance activities.  Finally, Commerce states that “the United States is making the commitment to respond to appropriate requests” regarding U.S. intelligence activity, in a manner that is consistent with national security obligations.

Article By David J. Bender of Covington & Burling LLP
© 2016 Covington & Burling LLP

Continued International and Domestic Coordinated Focus on Money Laundering

On February 1st, the U.S. Drug Enforcement Agency (DEA) announced an unspecified number of arrests of Hizballah money launderers, including Mohamad Noureddine. stack of moneyThese arrests followed the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) designation of Noureddine pursuant to its counterterrorism authority. The OFAC press release for this designation identifies Noureddine as a key Hizballah money launderer. According to OFAC,  Noureddine and his company Trade Point International S.A.R.L. established a money laundering network across Asia, Europe, and the Middle East that provides bulk cash shipping and black market currency exchange services for those seeking to hide their ill-gotten gains.

Hizballah International Financing Prevention Act of 2015

Irrespective of the detention of Noureddine, foreign financial intuitions that knowingly facilitate or conduct significant financial transactions for Trade Point International S.A.R.L. may have their U.S. correspondent or payable through accounts severed. OFAC has this authority under Section 102 of the Hizballah International Financing Prevention Act of 2015, which authorizes secondary sanctions on Hizballah.

Lebanese Canadian Bank

The arrests stem from  interagency  investigations of the Lebanese Canadian Bank (LCB). U.S.  law enforcement agencies have a long history with this now defunct Hizballah-linked bank.  In February 2011, the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) issued a Notice of Proposed Rulemaking to exclude  LCB from the U.S. financial system, finding that the bank is of “primary money laundering concern.”  In response to this action, the Banque du Liban revoked LCB’s banking license in September 2011. The bank’s remaining assets and liabilities were then sold to Societé General. Two years later, LCB entered into a $102 million settlement agreement to resolve a civil forfeiture and money laundering lawsuit filed by the U.S. Attorney for the Southern District of New York.  FinCEN withdrew  its Notice of Proposed Rulemaking in September 2015, on the basis that LCB no longer exists.

Coordinated Effort to Combat Money Laundering

The success of the ongoing money laundering investigation and recent arrests were possible because of the cooperation and coordination among the following international and domestic agencies:

  • DEA Philadelphia, DEA Miami, DEA Newark, DEA New York

  • DEA Special Operations Division and DEA Bilateral Investigative Unit

  • DEA country offices in Europe

  • DEA country offices in Bogota and Cartagena, Colombia

  • S. Customs and Border Protection National Targeting Center

  • S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN)

  • S. Department of the Treasury’s Office of Foreign Assets Control (OFAC)

  • Various French, German, Italian and Belgian law enforcement agencies

  • EUROPOL

  • EUROJUST

Like the LCB investigation before it, yesterday’s arrests will likely lead to additional U.S. and international actions against money launderers around the world.

ARTICLE BY Jeremy P. Paner of Holland & Hart LLP

Copyright Holland & Hart LLP 1995-2016.

Agreement Reached on New EU-U.S. Safe Harbor: the EU-U.S. Privacy Shield

On February 2nd, 2016, the European Commission and U.S. Government reached political agreement on the new framework for transatlantic data flows.  The new framework – the EU-U.S. Privacy Shield – succeeds the EU-U.S. Safe Harbor framework (for more on the Court of Justice of the European Union decision in the Schrems case declaring the Safe Harbor invalid, see our earlier post here).  The EU’s College of Commissioners has also mandated Vice-President Ansip and Commissioner Jourová to prepare the necessary steps to put in place the new arrangement.

The EU-U.S. Privacy Shield

According to the Commission press release, there will be several new elements to the EU-U.S. Privacy Shield, as compared with the invalidated EU-U.S. Safe Harbor framework.  For instance, in addition to subjecting participating U.S. companies to certain as-yet unspecified safeguards, the Privacy Shield will include:

  • An annual joint review of the program performed by the European Commission and U.S. Department of Commerce – to which European data protection authorities will be invited – to ensure its proper functioning.  This will include a review of access by U.S. intelligence agencies to EU-originating data.

  • Enhanced rights of redress for European data subjects, including (i) subjecting U.S. organizations to firmer deadlines when responding to complaints, (ii) allowing EU citizens and EU data protection authorities to refer complaints to the U.S. Department of Commerce and the U.S. Federal Trade Commission, (iii) establishing, as a last resort, a new binding alternative dispute resolution mechanism to resolve complaints that will be voluntary and free to data subjects, capable of issuing binding injunctive orders, and subject to judicial review consistent with the U.S. Federal Arbitration Act, and (iv) creating a new “Ombudsperson” within the U.S. State Department to handle complaints – channeled through EU Member State representatives – that relate to U.S. intelligence agencies’ access to data.  Disputes relating to human resources/employee data will remain subject to an alternative process that entails somewhat closer involvement of EU data protection authorities, similar to the current Safe Harbor.

Moreover, it is reported that the U.S. Director of National Intelligence will confirm by official letter to the EU that U.S. intelligence agencies do not engage in “indiscriminate mass surveillance” of data transferred under the new arrangement.

The Privacy Shield is expected to retain or enhance many of the elements contained in the original Safe Harbor framework, including substantive commitments made by U.S. companies on such matters as furnishing appropriate notices to EU citizens, maintaining the security of transferred data, and tightened restrictions on onward transfers.  The precise nature of these obligations is not yet known, but will become clearer in the weeks ahead.

Next steps

The EU College of Commissioner’s has mandated Vice-President Ansip and Commissioner Jourová to, over the coming weeks, prepare a draft Decision declaring the U.S. to ensure an adequate level of protection.  The adoption of such a Decision by the Commission must follow a “comitology” procedure which will involve:

  • a proposal from the Commission;

  • an opinion by EU Member States’ data protection authorities and the European Data Protection Supervisor (“EDPS”), in the framework of the Article 29 Working Party;

  • an approval from the “Article 31 Committee”, composed of representatives of Member States, under the comitology “examination procedure”;

  • the formal adoption of the Decision by the College of Commissioners;

  • at any time, the European Parliament and the Council may request the Commission to maintain, amend or withdraw the adequacy decision on the grounds that its act exceeds the implementing powers provided for in the Directive.

The effect of such a Commission Adequacy Decision is that personal data can flow from the 28 EU countries and three EEA member countries (Norway, Liechtenstein and Iceland) to the U.S. without any further safeguards being necessary.

Commissioner Jourová hopes for the new arrangement to be in force in approximately 3 months’ time.  The U.S. Government, in the meantime, will make the necessary preparations to put in place the new framework, monitoring mechanisms, and new Ombudsperson.

Tomorrow (February 3rd, 2016), Commissioner Jourová will attend the plenary meeting of the Article 29 Working Party to discuss the role of the EU data protection authorities under the EU-U.S. Privacy Shield.  The U.S. Department of Commerce is, in parallel, planning further briefings about the text.

Article By Daniel P. Cooper, Philippe Bradley-Schmieg & Joseph Jones of Covington & Burling LLP
© 2016 Covington & Burling LLP

EEOC Proposes Rule Requiring Employers to Disclose Pay Data on EEO-1 Forms and Key Recent Pro-Employee Changes in New York State’s and New York City’s Employment Laws and Regulations

EEOC EEO-1 Form Pay Data Requirement Raises Risks for Management

In a proposed regulation announced on January 29, 2015, the U.S. Equal Employment Opportunity Commission set forth changes that would require federal contractors and all other private-sector employers throughout the nation of more than 100 employees to report wage and salary data on their annual EEO-1 Forms. This new rule would mandate that such employers disclose compensation ranges and hours worked on their EEO-1 Forms, which already must contain data on employees’ gender, ethnicity, and race.

The Commission’s plans to require management to submit this data is part of the Obama Administration’s aggressive efforts to enforce the federal Equal Pay Act and other fair employment statutes and to promote pay equity in the workplace. Complying with the new regulation would require employers to spend substantial additional time and resources in gathering compensation information, which often involves many variables, and then organizing it into the format that the EEOC will mandate. Reporting this data to the EEOC would give the U.S. Government data without context and may lead to burdensome Commission investigations and enforcement actions based on misunderstandings of incomplete compensation information. Further, even though EEO-1 data enjoys some protections, the confidential status of employers’compensation information will now be vulnerable either to Freedom of Information Act requests or to kind of hacking attacks to which the federal government, with its antiquated IT systems in agencies such as the EEOC, has already suffered.

In sum, employers in New Jersey, New York, and around the country would become subject to higher EEOC scrutiny of their payroll practices, would face more Commission inquiries and litigations, would have to expend additional resources to complete EEO-1 Forms, and would need to live with a higher risk that their competitors will be able to obtain the confidential compensation data that the new rule would require management to submit each year to the EEOC.

Key Pro-Employee Changes in New York State and New York City Employment Laws and Regulations

New York State and New York City made significant changes in their labor and employment laws and regulations last year and this month. The NYS Legislature enacted, and Governor Cuomo signed, key revisions to laws that affect management throughout New York State. Mayor de Blasio and the City Council expanded local laws that further burden employers in the City. These important developments include:

A. New York State Women’s Equality Agenda

The Women’s Equality Agenda that went into effect on January 19, 2016 significantly amended New York State’s sex discrimination, sexual harassment, and equal pay laws to afford women greater protection in the workplace. These new statutes promoting gender equality in New York State include provisions that:

1. Amend New York State’s Equal Pay Act to require that an employer which pays lower wages to women than to men, for a job of equal skill, effort, and responsibility, demonstrate that such disparity is due to a bona fide factor other than sex, such as education, training, or experience, and that the difference in pay is job related and consistent with business necessity.

2. Make it unlawful for employers, in general, to prohibit employees from discussing or disclosing their wages — a new provision which affects both women and men.

3. Significantly increase the penalties for New York State Equal Pay Act violations by allowing employees to recover liquidated damages of three times (300%) the unlawfully unpaid wages, in addition to making the employee whole by requiring payment of the unpaid wages.

4. Allow a court to award attorneys’ fees to a prevailing plaintiff in sexual harassment and other sex discrimination actions.

5. Add familial status as a protected class under the New York State Human Rights Law. This new provision applies equally to men and women who are parents or guardians.

6. Expand the New York State Human Rights Law’s coverage of sexual harassment claims to all employers, including employers of from one to three employees who were not previously covered.

7. Require employers to provide reasonable accommodation for pregnancy-related medical conditions.

B. New NYS and NYC Protections for Transgender Individuals

1. Earlier this month, the New York State Division of Human Rights adopted regulations that make discrimination on the basis of a person being transgender unlawful under the New York State Human Rights Law. These regulations also prohibit harassment of transgender persons and require New York employers to reasonably accommodate employees who have been diagnosed with a “gender dysphoria” medical condition.

2. On December 21, 2015, the New York City Commission on Human Rights issued new enforcement guidelines on discrimination against transgender individuals, which the New York City Human Rights Law prohibits. The guidelines provide for penalties of up to $250,000 for violations that are found to be willful, wanton, or malicious.

C. New NYC Protections for Caregivers

1. The New York City Council has amended the New York City Human Rights Law to include caregiver as a protected class. The new local legislation, which Mayor de Blasio signed on January 5, 2016, defines caregivers as persons who provide direct and ongoing care for a minor child or a care recipient, such as a relative or individual with a disability who resides in the caregiver’s household. This amendment will go into effect on May 4, 2016.

Article By David I. Rosen, Galit Kierkut & Charles H. Kaplan of Sills Cummis & Gross P.C.

© Copyright 2016 Sills Cummis & Gross P.C.

Uber-Complicated: Insurance Gaps for Rideshare Vehicles Can Create Uncertainty for Passengers and Drivers

Many of us have come to enjoy the convenience of summoning a ride via our Smartphones with a rideshare service company such as Uber, Lyft, or Sidecar.  However, significant issues exist over whether rideshare vehicles have adequate insurance coverage to compensate people injured in accidents involving those vehicles.

If one is injured by a Greyhound bus, for example, there is little question that Greyhound likely would have adequate insurance to cover any injuries and likely would have sufficient resources to compensate the injured party even without insurance.

By contrast, if one is injured by a rideshare driver, there are several potential obstacles to securing adequate compensation.

First, the rideshare company may classify the driver as an independent contractor instead of an employee, meaning that the company will not accept responsibility for the driver’s actions.  Second, even if the rideshare company accepts responsibility, the company’s insurance may not provide coverage, as discussed below.  In that event, the injured party is left to rely on the driver’s insurance, which also may be inadequate and may even exclude coverage for rideshare-related accidents.

The independent contractor issue has been litigated in numerous states with different outcomes.  Uber currently is facing two class action lawsuits in California related to this issue: Ghazi v. Uber Technologies, Inc., et al., No. CGC-15-545532 (Superior Court of California, County of San Francisco) and O’Connor v. Uber Technologies, Inc., et al., No. CV-13-3826 (U.S. District Court for the Northern District of California).[1]

Even if rideshare companies accept responsibility for a driver’s conduct, the companies typically have provided only limited insurance for their drivers.  Specifically, rideshare companies typically have not provided coverage in the following two periods: (1) when the rideshare app is turned off, or (2) when the app is turned on but no passenger is in the vehicle.

But, a horrific accident involving an Uber vehicle helped to start changing this dynamic.  Uber was sued in 2014 in California after a driver struck and killed a child during period (2) above, when he had his app turned on but had not yet picked up a passenger.  The case is captioned Liu v. Uber Technologies Inc., et al., No. CGC-14-536979 (Superior Court of the State of California, County of San Francisco).

California and other states recently have started requiring rideshare companies to maintain some coverage for their drivers in period (2), but that coverage is limited.  The companies typically provide contingent liability coverage with $50,000 per person/$100,000 per accident bodily injury coverage, but this insurance typically pays only for losses not covered by the driver’s personal policy.

And, even when rideshare company coverage is in place, insurers have relied on certain insurance policy exclusions in an effort to avoid paying claims.  One insurer is currently making such arguments in the coverage dispute with Uber over the Liu settlement See Evanston Insurance Co. v. Uber Technologies, Inc., No. C15-03988 WHA (U.S. District Court for the Northern District of California).

If a rideshare company’s commercial insurance is inadequate to fully compensate an injured party, that person is left to rely on a driver’s personal insurance.  But the driver’s insurance may be of no help because personal auto policies often contain an exclusion (the “livery exclusion”) for accidents occurring during commercial use of the vehicle, such as when a driver is transporting a passenger for hire.

Recently, there has been some effort in the insurance industry to close the insurance gaps discussed above, particularly during period (2), when a rideshare driver is using a mobile app but has not yet picked up a passenger.

In March 2015, the National Association of Insurance Commissioners adopted a white paper on insurance coverage for rideshare companies titled “Transportation Network Company Insurance Principles for Legislators and Regulators.”  The paper recommends that rideshare companies provide full coverage for period (2) or that drivers purchase individual commercial coverage during that period.

Similar to California, legislatures in Colorado, Illinois, and Virginia have passed laws requiring rideshare companies to offer full insurance during period (2).

In addition, some insurance companies are offering products to rideshare drivers to protect them in the event that rideshare companies’ commercial insurance does not pay.  For example, Geico (in Maryland and Virginia) and Progressive (in Pennsylvania) are offering individual commercial insurance to rideshare drivers that has lower rates than most commercial insurance.  USAA (in Colorado and Texas) offers a commercial insurance policy to rideshare drivers for an extra $6 to $8 per month.  Erie Insurance (in Illinois and Indiana) has removed an exclusion from personal auto policies purchased with a “business use” designation such that rideshare drivers now may be covered.

Overall, many options are emerging to provide additional insurance coverage on rideshare vehicles for the benefit of passengers and other third parties at all stages of the transportation process – from the time a rideshare driver turns on the app through the transport of a passenger.  Passengers, drivers, and affected third parties should continue to monitor these developments to make sure they are adequately protected.

Article By Natalie A. Baughman of Gilbert LLP
© 2016 Gilbert LLP

[1] One consequence of the driver being classified as an independent contractor is that rideshare companies do not have to provide worker’s compensation insurance for a driver’s on-the-job injuries.  The Ghazi case addresses whether Uber drivers actually are employees and thus Uber must provide worker’s compensation insurance.

Automated Retail: Stores without Staff, but Not Without Issues

For many, air travel is required for business while for others it is used for pleasure. As millions of people are hustling through airports to make their flights, some may have taken a moment to stop to shop at one of the many staffless stores that are opening in airports. These staffless stores, which are often referred to as automated retail, sell goods that range from electronics such as headphones and chargers to cosmetics and clothing.

The staffless store phenomena is not limited to just airports as there is an increasing trend towards using these retail outlets in shopping centers throughout the country. We wrote on this new trend back in August of 2014 when the focus was on brick and mortar stores without staff, such as fitness centers and mattress stores. The 2016 version of staffless stores are a hybrid of the traditional kiosks/carts and a vending machine. They are typically similar in size to a vending machine but are situated in locations comparable to that of a traditional kiosk or inside of department stores. While branded in a manner similar to a kiosk, these automated outlets allow the retailer to avoid the cost of staffing the location.

The staffless store offers landlords and tenants a number of positive opportunities. For example, by offering tenants a lower cost way of penetrating a new market and giving landlords a way to increase revenues through the use of spaces that cannot be utilized effectively with traditional kiosks or carts. It can also introduce new retailers that otherwise would not be willing to incur the operating expense of having employees. Establishing the retailer in the Center initially through the use of an automated retail operation could also lead to later expansion opportunities with that retailer.

A landlord and tenant will often document the relationship for a staffless store by using a traditional kiosk or specialty lease form. However, there are a number of items that the parties should review when documenting the relationship. Some of those items include:

  • Many kiosk leases include operational and staff requirements so any language requiring a certain number of staff at the location or staff attire needs to be addressed.

  • Kiosk or cart leases often require that the kiosk/cart be adequately stocked with merchandise. While this requirement may still be applicable, the retailer needs to confirm that it has an adequate inventory monitoring process or software to ensure that the automated retail machine does not run out of product.

  • The exchange/refund policy may need to be modified to address the fact that retailer personnel will not be present to make any exchange of product.

  • The use of Center gift cards to pay for goods should be addressed in the Lease and by the automated retailer.

  • Confirming that the insurance requirements for the tenant are appropriate given that there will not be staff located at the leased premises. The indemnification provisions should also be carefully reviewed for accuracy given the facts of a given situation.

Article By Chris A. Jenny & William R. West of von Briesen & Roper, S.C.

©2016 von Briesen & Roper, s.c