Uncategorized Archives - Page 132 of 179

New Tax Law Changes How Employers Claim Sexual Harassment Settlements

The Tax Cuts and Jobs Act of 2017 (the “Act”) was signed into law on December 22 by President Trump. The Act contains a provision that will change how employers are taxed, when settlement is reached in sexual harassment and sexual abuse cases.

Section 162 of the Tax Code generally allows businesses to deduct certain ordinary and necessary expenses paid or incurred during the year as part of running the business. Previously, this section included tax deductions for confidential settlements and for attorney’s fees incurred in defense of sexual harassment allegations. In response to the ongoing #MeToo sexual harassment awareness movement, Democratic Senator Bob Mendez of New Jersey proposed an amendment to Section 162 stating “[c]orporations should not be allowed to write-off workplace sexual misconduct as a normal cost of doing business.” Subsequently, this amendment (now Section 13307 of the Act) changes Section 162 to now prohibit tax deductions for sexual harassment settlements.

Under Section 13307 of the Act, employers no longer receive a business deduction for “(1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorney’s fees related to such a settlement.” In other words, if an employer requires an employee to sign a nondisclosure agreement as a condition of a sexual harassment settlement, or the settlement agreement contains a confidentiality provision, then an employer cannot claim the settlement payment, nor corresponding attorney’s fees as a business deduction.

This significant provision applies to amounts paid or incurred after December 22, 2017. Until there is further guidance from either the courts or Internal Revenue Service to interpret the statutory text of Section 13307, litigants will be left with the Statute’s plain language. As a result, settlement negotiations between employers and employees may be more difficult. Employers now are left with a difficult choice: deduct the settlement as a business expense or keep sexual harassment/abuse allegations confidential.

This post was written by Seth B. Arthur and Luis E. Avila of Varnum LLP.

Read more about tax updates on the National Law Review Tax page.

War on Weed: AG Jeff Sessions Creates Reefer Madness

Attorney General Jeff Sessions has caused chaos in the marijuana industry and is forcing those who have made efforts to create legalized businesses in compliance with state laws to ponder whether their anticipated profits will go up in smoke. In a memo to all U.S. attorneys, Sessions rescinded Obama-era decrees that restrained prosecutors from enforcing federal drug laws in states that acted to legalize marijuana under their own laws. The decrees created an environment in which states felt they had the freedom to legalize marijuana without interference from federal authorities. Nonetheless, all aspects of the marijuana industry – for example, growing, manufacturing related products, distributing, advertising, and managing property used to grow, manufacture or distribute marijuana – have remained illegal. The updated guidance from Sessions now encourages federal prosecutors to resume enforcing these laws.

It is no coincidence that Sessions, a longtime opponent of the legalization of marijuana for recreational use, issued his guidance just days after California allowed recreational marijuana businesses to open their doors. Those who follow this issue know Sessions also has his sights set on enforcing federal drug laws against those engaged in the medical marijuana industry. Sessions requested Congress remove a budgetary provision currently prohibiting the Department of Justice (DOJ) from using funds to “prevent certain states ‘from implementing their own State laws that authorize the use, distribution, possession or cultivation of medical marijuana[.]’”^[1]

This new guidance highlights the conflict that exists between federal law and the laws of state, local and tribal governments that have seemingly legalized marijuana both recreationally and medically. This should be cause for concern for those involved in the marijuana industry. Federal drug laws prevail over the comparable laws of states, cities and tribal communities; so, compliance with those laws is not a defense to the violation of federal laws prohibiting every aspect of the fast-growing marijuana industry. A key factor for its future is what happens to the Rohrabacher-Blumenauer Amendment, also known as the Rohrabacher-Farr Amendment, which prohibits the DOJ from spending federal funds to interfere with state medical marijuana laws. The law will expire on January 19 absent its annual re-authorization from Congress.

Ultimately, the manner in which the guidance from Sessions will be implemented by federal prosecutors around the country is uncertain. However, now that the prosecutors have the freedom and the instruction to enforce the drug laws against the marijuana industry, it is likely they will flex their muscles. This will result in substantially adverse legal and economic consequences for the businesses and individuals engaged in that industry. If you are concerned about the impact this new guidance may have on you, your business or an investment of yours, please contact your Dinsmore attorney. We have many attorneys experienced in this area, including multiple former federal prosecutors, who can assist you with your needs and concerns.

[1] Jeff Sessions’ letter regarding Department of Justice Appropriations is available at https://www.scribd.com/document/351079834/Sessions-Asks-Congress-To-Undo-Medical-Marijuana-Protections.

This post was written by Robert G. Marasco and Marisa K. Fenn of Dinsmore & Shohl LLP.

France’s Law to Accompany the GDPR and EU Directive Published

On December 13, 2017 the French Ministry of Justice published a draft law to accompany the implementation within France of the General Data Protection Regulation 2016/679 (GDPR) and the Directive 2016/680, governing the handling of data in law enforcement situations.

The following are some of the noticeable change brought by the draft law with respect to GDPR.

(Temporarily) Unclear and Not User-friendly

It is presented as an amendment to the existing French Data Protection Act (DPA, known as Loi Informatique & Libertés) and the press release indicates that “the government has made the choice to keep the existing structure.”

As a consequence, the revised DPA will be particularly difficult to read and understand, because it does not remove the old text that should no longer apply after the GDPR takes effect. By way of example, it does not delete the former rules on territorial scope, whereas the rules have changed significantly under GDPR.

To correct this unfortunate situation, Article 20 authorizes the government to revamp the law by way of ordinance in order to “make the formal corrections and adaptations necessary for the simplification and the coherence as well as the simplicity of the implementation implemented by the data subjects.” The government has a period of six months after the adoption of the law to do so.

Scope for Local Derogations

Where the GDPR allows local law to adapt or complete the rights and obligations provided by GDPR, French rules will apply to processing of personal data of individuals residing in France, even if the controller is not established in France.

However, where this relates to freedom of expression or freedom of the press, national rules of the country where the data controller is established shall apply.

Powers of the CNIL

The draft law contains many changes to the powers of the CNIL and the way it is organized in relation to its decision making process.

Soft law – Among others, the CNIL:
- Will publish guidelines, recommendations or specifications for processing activities and encourage the development of code of conducts – and will publish methodologies for processing of health data for research purposes
- May prescribe additional security measures for health data, including biometric and genetic data
- May provide or organize certification
- May establish a list of high risk processing activities requiring prior consultation
- May make observations before any court in procedures based on GDPR or the DPA
Sanctions – There are a number of changes to sanctions themselves, as well as sanctions procedures. For example, the CNIL will be able to issue an injunction with a daily fine of up to €100,000.
Investigations – Multiple changes in this area include CNIL agents being allowed to carry out the online checks under a borrowed identity.
Cooperation – There are several provisions on the cooperation between the CNIL and other supervisory authorities, including as regards joint investigations.
International transfers – Following a complaint, the CNIL will have power to request that the State Council (i) orders the suspension or the cessation of the transfer of data, (possibly with a daily fine) and (ii) requests a preliminary ruling by the European Court of Justice to assess the validity of (a) an adequacy decision by the European Commission or (b) any acts taken by the European Commission authorizing or approving appropriate safeguards in the context of data transfers.

Registration Formalities and Prior Authorization

GDPR has eliminated the registration formalities for processing activities with data protection authorities, except for measures providing safeguards for international transfers and consultation of the supervisory authority where there remains a risk to data subject after a data protection impact assessment (DPIA). However:

French law retains registration formalities for heath data for certain types of processing activities.
Processing activities involving use of the social security number will be set by a decree of the Council of State, after opinion by the CNIL, including the categories of controllers and the permitted purposes. Otherwise, use of the social security number is permitted for national statistical purposes, including scientific research and electronic relations with the French administration. The CNIL will no longer have the power to authorize, even on a case by case basis, other uses of the social security number.
A higher level of authorization remains applicable for processing activities implemented on behalf of the French state (for example, for the biometric or genetic data necessary for the identification or control of the identity of persons).

Data Protection Officer

The draft law has not modified the DPO requirement (but has added some minor specificities).

Health Data

Processing Activities in the “Health Sector” – Chapter IX and new sections 53 to 60 of the DPA are devoted to processing activities in the “health sector”. Such processing activities have to be carried out for public interest purposes. They do not include processing activities for the purpose of medical treatments or prevention and processing for social care purposes, which is governed by the general section on sensitive data. Notably, they include, but are not limited to, medical research or evaluation of practices in the medical sector.

The processing of this data will have to comply with specifications, methodologies or regulations established by the CNIL in consultation with the National Institute of Health Data and other public bodies and stakeholders. Implementation of such processing activities will require either (i) prior self-certification with the relevant specification, methodology or regulation or (ii) prior authorization by the CNIL. The CNIL may grant a general authorization to a controller for all identical processing activities.

The draft law also contains provisions with regard to data subjects’ rights and, notably, in relation to minors.

Processing of “Sensitive Data” – The draft law adds to the general prohibition to process special categories of data, so called “sensitive data”, the prohibition to process genetic, biometric data for uniquely identifying a natural person (as well as data relating to a person’s sexual orientation).

It does, however, authorize, in addition to what is provided under article 9.2 GDPR, the use by employers or administrations of biometric data for access control to premises, equipment or apps.

Data Relating to Criminal Convictions and Offences

This type of data can only be processed by limited categories of persons, except where the processing is for the purpose of exercising or defending one’s rights in justice and for the enforcement of any decision, as strictly necessary for this purpose.

Data from published court decisions can be reused, but without disclosing information on the identity of individuals.

Representation of Data Subjects

Individuals can be represented individually in their complaints to the CNIL or against it by the associations and organizations already empowered by Article 43 to represent several individuals in class actions (with a reminder that class actions cannot involve claiming for damages).

Automated Individual Decisions

The draft law facilitates automated decision making by administrative bodies, provided that it does not involve processing of sensitive data and that “the data controller ensures the control of the algorithmic processing and its evolutions,” without, however, defining precisely this “control of algorithmic processing”.

Data Breach Communication

A decree by the State Council will set the list of processing activities for which there will be no requirement to communicate the data breach to data subjects, where the disclosure of such information creates a risk for national security, national defense or public safety. This only applies where the processing is based on a legal obligation or necessary for a mission of public interest.

Age of Consent for Minors

Because the bill does not contain any provision on the age of consent, the 16-year minimum threshold set by the RGPD becomes the rule. There is some debate on whether the minimum age should be 15.

Next Steps

The draft law has already been commented on by the CNIL and the State Council. It was submitted by the government on 13 December under a so-called “accelerated procedure,” which limits the number of reviews by both chambers of parliament, with a view to meeting the May 25, 2018 deadline.

Even after its publication, as required by the law itself, a robust cleaning exercise will be required to make it fully compatible with GDPR.

This article was written by Stéphanie Faber of Squire Patton Boggs (US) LLP

New SAMSHA Rule Makes it Easier for Providers to Share Substance Abuse Records

The Substance Abuse and Mental Health Services Administration (SAMHSA) released a final rule on January 2, 2018 (Final Rule) attempting to bridge the gap between the Health Insurance Portability and Accountability Act (HIPAA) and 42 CFR Part 2 (Part 2). Part 2 protects the confidentiality of patient alcohol and drug abuse records and applies to health care entities that receive federal assistance and provide substance abuse treatment. HIPAA generally protects the confidentiality of patient information and is typically less stringent than Part 2 requirements.

Effective February 2, 2018, the Final Rule, which was driven by the growth of electronic health records and integrated health care models, specifically addresses (1) the prohibition on re-disclosure notice by including an option for an abbreviated notice and (2) the circumstances under which lawful holders and their legal representatives may use and disclose patient identifying information for purposes of payment, health care operations and audits and evaluations.

Abbreviated Notice on Re-Disclosure. 42 CFR § 2.32 requires any disclosure of Part 2 records made with the patient’s written consent to include a prohibition on re-disclosure. Previously, this required a lengthy written re-disclosure statement. Due to concerns about character limits in text fields within electronic health record systems and ongoing tension between the rigorous disclosure requirements of Part 2 and the broad range of permissible disclosures under HIPAA, the Final Rule provides an alternative written statement which is significantly shorter. Health care providers now have the option of providing either of the following written statements:

(1) This information has been disclosed to you from records protected by federal confidentiality rules (42 CFR part 2). The federal rules prohibit you from making any further disclosure of information in this record that identifies a patient as having or having had a substance use disorder either directly, by reference to publicly available information, or through verification of such identification by another person unless further disclosure is expressly permitted by the written consent of the individual whose information is being disclosed or as otherwise permitted by 42 CFR part 2. A general authorization for the release of medical or other information is NOT sufficient for this purpose (see § 2.31). The federal rules restrict any use of the information to investigate or prosecute with regard to a crime any patient with a substance use disorder, except as provided at §§ 2.12(c)(5) and 2.65; or

(2) 42 CFR part 2 prohibits unauthorized disclosure of these records.

Disclosures to Contractors, Subcontractors, or Legal Representatives for Payment and/or Health Care Operations. 42 CFR § 2.33 previously required a program covered under Part 2 to disclose records of a patient in accordance with the patient consent and to any person identified in the consent. The Final Rule amends 42 CFR § 2.33 to allow a lawful holder of patient identifying information for payment and/or health care operations activities to further disclose those records to its contractors, subcontractors, or legal representatives to carry out payment and/or health care operations on its behalf.

Lawful holders wishing to disclose this patient identifying information to contractors, subcontractors or legal representatives must:

(1) have in place a written contract with the recipient which provides that the recipient is fully bound by the provisions of Part 2 upon receipt of the patient identifying information;

(2) furnish to the recipient the re-disclosure notice required under 42 CFR § 2.32;

(3) require the recipient to implement appropriate safeguards to prevent unauthorized uses and disclosures; and

(4) require the recipient to report any unauthorized uses, disclosures or breaches of patient identifying information to the lawful holder.

As for what SAMSHA considers “payment and/or health care operations activities”, SAMSHA has included in the preamble to the Final Rule an illustrative list of 17 types of payment or health care operations activities. The list includes, among other activities: clinical professional support services, billing and claims management, patient safety activities, training activities, third party liability coverage, and accreditation, certification, licensing or credentialing activities.

Contracts between lawful holders and contractors, subcontractors and legal representatives must be in compliance with the Final Rule by February 2, 2020.

This Final Rule follows a January 18, 2017 final rule from SAMHSA that allowed patients to give general consents instead of requiring individual consents each time a record was shared; an overview of the 2017 final rule can be found here. That this is the second final rule to be issued in less than one year – the last amendment prior to that was in 1987 – indicates SAMSHA’s desire to modernize and clarify Part 2 requirements in light of advancements in the U.S. health care delivery system.

The Final Rule is a positive step in promoting more innovative models of health care delivery, including integrated and coordinated care, while trying to align Part 2 with the far more progressive and familiar HIPAA requirements. This shift should lead to improved compliance with Part 2, which was previously lacking. Clients who are affected by this rule should review their patient consent agreements to determine if the abbreviated re-disclosure is appropriate. In addition, clients should review existing relations with their downstream contractors and legal representatives who engage in payment and/or health care operations and, if required, enter into compliant contractual agreements as required by the Final Rule.

The January 3, 2018 Federal Register publishing the Final Rule can be found here.

This article was written by Jenna Moran of Dinsmore & Shohl LLP

Climate Change and Trends in Global Finance

On December 12, French President Emmanuel Macron, joined by President of the World Bank Group, Jim Yong Kim and the Secretary-General of the United Nations, António Guterres, hosted the One Planet Summit highlighting public and private finance in support of climate action. The summit’s focus centered on addressing the fight against climate change and ensuring that climate issues are central to the finance sector.

The summit’s most notable event was perhaps the announcement that insurance giant Axa would be dumping investments in and ending insurance for controversial U.S. oil pipelines, quadrupling its divestment from coal businesses, and increasing its green investments fivefold by 2020. Axa’s plans echo those of BNP Paribas, who, in mid-October, announced that it would terminate business with companies whose principal activities involve exploration, distribution, marketing, or trading of oil and gas from shale or oil sands. The bank also ceased financing projects that are primarily involved in the transportation or export of oil and gas. These moves themselves follow controversy over the Dakota Access pipeline in the U.S. from mid-March that resulted in ING’s $2.5 billion divestment in the loan that financed the pipeline.

These measures prefigure what might be a more conspicuous trend of large institutional investors moving more rapidly away from fossil fuel investments and into green investments. In mid-December, the World Bank said it would end all financial support for oil and gas exploration by 2019. Around the same time, New York Governor Andrew Cuomo revealed a plan for the state’s common retirement fund, with over $200 billion in assets, to cease all new investments in entities with significant fossil-fuel related activities and to completely decarbonize its portfolio. Recently, HSBC pledged $100 billion to be spent on sustainable finance and investment over the next eight years in an effort to address climate change. Additionally, JP Morgan Chase committed $200 billion to similar clean-minded investments, Macquarie acquired the UK’s Green Investment Bank, and Deutsche Bank and Credit Agricole both made exits from coal lending. As the landscape of global finance shifts, it will be important to monitor how funds, banks, and insurers address the issues related to climate change.

This post was written by Sahir Surmeli of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

FDA Issues Amended Final Guidance on Medical Device Accessories

The Food and Drug Administration (FDA) issued several medical device guidance documents late last year, including an amended version of a previously final guidance titled “Medical Device Accessories: Defining Accessories and Classification Pathways.” The FDA revised the guidance in response to the FDA Reauthorization Act of 2017, which required the agency to “classify an accessory under [section 513 of the Food, Drug & Cosmetic (FD&C) Act] based on the risks of the accessory when used as intended and the level of regulatory controls necessary to provide a reasonable assurance of safety and effectiveness of the accessory, notwithstanding the classification of any other device with which such accessory is intended to be used.”

The background section of the guidance notes that the FDA has traditionally classified accessories in one of two ways:

1. By including the accessory in the same class as the parent device in one of three ways:

Through a 510(k) clearance
Through a Premarket Application (PMA) approval
Through including it in the classification regulation or order for the parent device
2. By issuing a separate classification regulation or order for the accessory

The guidance focuses on the Accessory Classification process described in Section 513(f)(6) of the FD&C Act. For example, the de novo classification process may be used for a new accessory type (i.e., an accessory of a type that has not been previously classified, cleared for marketing under a 510(k) submission, or approved in a PMA). In addition, manufacturers of accessories within an accessory type that has already been classified by regulation or order, or has received PMA approval or 510(k) clearance, may seek reclassification or exemption from the requirement to submit a 510(k) notification.

The guidance states that FDA asks two questions when determining whether a device is an accessory: (1) Is the device intended for use with one or more parent devices? and (2) Is the device intended to support, supplement, or augment the performance of one or more parent devices? The answer to the first question “will generally be determined by the labeling and promotional materials for the potential accessory…,” according to the guidance. To help answer the second question, the guidance includes the following definitions and offers at least one example for each term:

Supports – enables or facilitates a parent device to perform according to its intended use
Supplements – adds a new function or new way of using the parent device, without changing the intended use of the parent device
Augments – enables the patent device to perform its intended use more safely or effectively
Signaling a departure from its traditional way of classifying accessories as described in the background section, the FDA states that it “intends to determine the risk of accessories and the controls necessary to provide a reasonable assurance of safety and effectiveness according to their intended use” just as it does for non-accessory devices. The guidance is explicit that accessories will not automatically be placed in the same class as their parent device(s): “the risk profile of an accessory can differ significantly from that of the parent device, warranting differences in regulatory classification.”

The guidance includes a description of the process for requesting regulatory classification of an accessory. In the final section of the draft guidance, the FDA encourages firms to use the de novo classification process when seeking classification decisions for new types of accessories. This process can lead to a Class I or Class II classification, even in the absence of a legally-marketed predicate device, and thus avoid an automatic Class III classification and the associated need to follow the more expensive and time-consuming premarket approval process.

This article was written by Lynn C. Tyler, M.S. of Barnes & Thornburg LLP

2018 Tax Reform Series: A Change to Participant Loan Rollovers

One welcome qualified plan change under the Tax Cuts and Jobs Act is the extension of the period within which a participant may pay the amount of an “offset” of an outstanding plan loan to another qualifying plan or IRA to accomplish a tax-free rollover of the loan offset amount. The change became effective January 1, 2018.

A distribution of a plan loan offset occurs when, under the plan terms, a participant’s accrued benefit is reduced (or offset) in order to repay the loan. A distribution of a plan loan offset amount may occur in a variety of circumstances, such as where the plan terms require that, in the event of the participant’s request for a distribution, a loan be repaid immediately or treated as in default. The new rule applies to unpaid accrued loan amounts that are offset from the participant’s plan account at plan termination or at or after severance from employment if the plan provides that the accrued unpaid loan amount must be offset at such time. Prior to this law change, the deadline to roll over the offset was the 60th day after the date the loan offset arose. As of January 1, 2018, to the deadline is the filing due date (including extensions) for the participant’s tax return for the year in which the loan offset amount arises. As a result of this change, the loan offset rollover period can be as long as 21 months where the loan offset occurs early in the calendar year and the participant requests an extension of his or her Form 1040 deadline for the year of the offset.

The change means that a qualifying participant who desires to defer taxes on the maximum amount of distributions by rolling over all of his or her distributed account in a plan (including qualified plans such as 401(k) plans, 403(b) plans or governmental 457(b) plans) will now have significantly more time to accumulate from other sources an amount equal to the accrued and outstanding unpaid principal and interest on any plan loan that was earlier extended to him or her and treated as an offset and then pay and roll over such amount to another qualifying plan or IRA.

Note, however, that such tax-free rollover treatment does not apply to any offset amount under a loan that has already been deemed to be taxed as a distribution under the Code (and reportable on Form 1099-R) either because its terms did not comply with the Code or because it remained in default past the plan’s default cure period (which cannot be longer than the end of the calendar quarter that begins after the quarter in which the default arises). The amount of such a defaulted loan will, absent correction under the EPCRS plan correction procedures, be treated as of the end of the allowed cure period as if it were a taxable distribution from the plan that can also be subject to the 10% early distribution penalty tax.

Finally, remember that a loan offset amount is treated as both a repayment and a distribution of a plan loan amount. Therefore, unless a deemed tax distribution (as discussed above) has occurred, the offset amount will be taxed to a participant except where an amount equal to the offset is timely rolled over tax-free by the participant. The new liberalization of the rollover period for offsets will make possible many more such rollovers.

This article was written by Raymond P. Turner of Jackson Lewis P.C.

Construction Group News: Extremely Clear Pay-If-Paid Clause is Enforced

Every contract involves the risk of insolvency, and every construction subcontract involves the risk of the owner/developer failing to make the payments that the contractor intends to use to pay its subcontractors. Frequently, general contractors seek to shift this risk onto their subcontractors through the use of clauses which describe payment from the owner to the contractor as a condition precedent to payment to the subcontractor. Simply put, when the contractor is successful in shifting the risk to the subcontractor, the clause is known as “Pay-If-Paid”. If contract language is not sufficient to transfer the risk, the clause is viewed as “Pay-When-Paid”. A Pay-When-Paid clause merely defers the timing of the payment due to the subcontractor until the contractor has been paid by the owner, or some reasonable time after the work was performed even if payment has not been made to the contractor.

The question of whether a contract involved a Pay-If-Paid clause was recently litigated under Connecticut law in the Superior Court in Baker Concrete Const. v. A. Poppajohn Co., 2017 WL 4106383. In that case, the parties had signed an agreement which provided that

The Subcontractor expressly acknowledges and agrees that payments to it are contingent upon the Contractor receiving payments from the Owner. The Subcontractor expressly accepts the risk that it will not be paid for the Work performed by it if the Contractor, for whatever reason, is not paid by the owner for such Work. The Subcontractor states that it relies primarily for payment for Work performed on the credit and ability to pay off [sic] the Owner and not of the Contractor, and thus the Subcontractor agrees that payment by the owner to the Contractor for work performed by the Subcontractor shall be a condition precedent to any payment obligation of the Contractor to the Subcontractor.

The plaintiff subcontractor argued that the clause was unenforceable as a risk-shifting provision based on its interpretation of a series of Connecticut cases. However, upon review, the Court distinguished the case law upon which the subcontractor relied as either involving public jobs or involving clauses which were more ambiguous than the one in the parties’ contract here. Judge Povodator specifically relied on the contract language that provided “The Subcontractor expressly accepts the risk that it will not be paid for the Work performed by it if the Contractor, for whatever reason, is not paid by the owner for such Work” and “the Subcontractor agrees that payment by the owner to the Contractor for work performed by the Subcontractor shall be a condition precedent to any payment obligation of the Contractor to the Subcontractor” in determining that there was no ambiguity as to what these parties intended. In making this determination, however, Judge Povodator did question as to whether such risk shifting would be permissible under Connecticut law on a public job.

Takeaways

This case once again emphasizes the need for clear contract language to effectively transfer or share the risk on nonpayment downstream. General contractors that wish to share with subcontractors the exposure for an owner’s failure to pay must ensure that their subcontracts contain clear and enforceable Pay-If-Paid language such as the language in the subcontract at issue in this case. On the other hand, subcontractors that believe that the general contractor should bear the risk of the owner’s failure to pay must negotiate the removal of “Pay-If-Paid” language from their subcontracts.

This article was written by Michael J. Donnelly of Murtha Cullina

For more news, check out our Construction Law Page

2018 LMA Tech West Conference

Registration is open for the 2018 LMA Tech West Conference on January 31 –February 1, 2018 at the Hotel Nikko. This premier marketing technology educational event will bring together more than 300 marketing and business development professionals from across the country for a day and a half of innovative programming and networking.

Through a variety of session formats, including hands-on workshops, roundtable discussions, TED Talks and panel presentations, LMA Tech West is where some of the most innovative thinkers in our industry provide examples, inspiration and takeaways that attendees of all levels can apply to the challenges and opportunities we face in our roles, in our organizations and in the industry.

Keynote Speaker – Scott Brinker

We are very excited to have Scott Brinker as the keynote speaker for the 2018 LMATech West conference. Scott is an expert on marketing technology and how it is changing marketing strategy, management and culture. He is the editor of the Chief Marketing Technologist Blog and the author of Hacking Marketing: Agile Practices to Make Marketing Smarter, Faster, and More Innovative, which aims to help marketers at all levels — even those with no technical background or inclination — adapt marketing management to the wild and wonderful whirlwind of a world now dominated by software. Learn more about Scott.

How to Ensure Your Business Development New Year’s Resolutions Become Reality

It’s mid-January – already halfway through the first month of the year. By now, according to John Norcross, author of Changeology: 5 Steps to Realizing your Goals and Resolutions, about half of us have already given up on at least one of our resolutions.

The University of Scranton Journal of Clinical Psychology reports that 45% of Americans usually make some kind of New Year’s resolution but only 8% achieves success. The reason, says Baba Shiv, Stanford Neuroeconomist, is that most people use the wrong part of their brain when attempting to keep resolutions. We rely on willpower and resolve rather than forming new habits using cognitive thinking, planning and rewards.

At LawVision, our mantra throughout the year is that we teach habits rather than steps. Let’s face it, business development principles are not nearly as complex as the rules of evidence or the tax code. Our clients, with some well-planned training, can eventually grasp the nuts and bolts of how to go about business development. The real challenge is finding the time to do it and that requires building habits.

Neuroscientists and Psychologists agree. Shiv claims in his often quoted study, “Heart and Mind in Conflict” that willpower springs from a part of the brain, in the prefrontal cortex that is easily overloaded and exhausted. When the cognitive parts of the brain responsible for prioritizing and making real choices becomes stressed, the resolve weakens.

Rather than simply making a resolution, a better approach is to tie that resolution to a plan for building a new habit.

USA today listed John Norcross’s top six strategies for turning hollow resolutions into new habits that stick. They (still) apply to anyone focused on building out a great book of business this year.

1) Make changes to your behavior. Changing a routine can bring different results. Instead of trying the same thing over and over again, expecting a different outcome, modify behaviors.

2) Define SMART goals. When setting targets, use the SMART acronym: specific, measurable, attainable, relevant and time-specific.

3) Track your progress. A calendar, a pipeline tool a contact list, a business plan, a smartphone app… whatever it is, find something to keep track of and measure your progress

4) Reward small achievements. When you reach a portion of your goal, be kind to yourself and recognize the accomplishment. This will help keep you focused and excited to move forward.

5) Make it public. Make yourself accountable to your family, your network and social circles.

6) You are human. Chances are you may slip up once or twice during this process. It’s OK. According to Norcross, seventy percent of successful goal-setters said that their first slip actually strengthened their resolutions. Adopt the outlook, “I’m human. Let me learn from it, and let me keep going.”

This post was written by Craig Brown.

Category: Uncategorized

New Tax Law Changes How Employers Claim Sexual Harassment Settlements

Like this:

War on Weed: AG Jeff Sessions Creates Reefer Madness

Like this:

France’s Law to Accompany the GDPR and EU Directive Published