Uncategorized Archives - Page 92 of 179

Senate Approves Nominations of Three Key Environmental Posts

In the last hours of the 115th Congress, the Senate on January 2, 2019, approved the nominations of three individuals to serve in key environmental posts:

Alexandra Dapolito Dunn — EPA Toxics Office: The Senate approved the nomination of Alexandra Dunn to serve as the Assistant Administrator of the U.S. Environmental Protection Agency’s (EPA) Office of Chemical Safety and Pollution Prevention (OCSPP). Ms. Dunn had been serving as the administrator for EPA Region 1. She previously was executive director and general counsel for the Environmental Council of the States (ECOS). Prior to joining ECOS, Ms. Dunn served as executive director and general counsel for the Association of Clean Water Administrators. Ms. Dunn also has extensive experience in environmental education, having served as dean of Environmental Law Programs at the Elisabeth Haub School of Law at Pace University. In addition, she has taught at the Columbus School of Law, Catholic University of America, and, most recently, as an adjunct associate professor of law at the American University’s Washington College of Law. Ms. Dunn received a B.A. in political science from James Madison University and a J.D. from the Columbus School of Law. More information on Ms. Dunn’s confirmation hearing is available in our blog item Senate EPW Committee Holds Hearing on Nomination of Alexandra Dunn to Lead OCSPP.

Mary Neumayr — CEQ: The Senate also approved the nomination of Mary Neumayr to head the White House’s Council on Environmental Quality (CEQ). Ms. Neumayr currently serves as chief of staff for the CEQ. Prior to joining CEQ in March of 2017, she served in a variety of positions with the Committee on Energy and Commerce in the U.S. House of Representatives, including Deputy Chief Counsel, energy and environment in 2017; Senior Energy Counsel from 2011 to 2017; and Counsel from 2009 to 2010. Ms. Neumayr also served as Deputy Counsel for environment and nuclear programs at the U.S. Department of Energy from 2006 to 2009, and Counsel to the Assistant Attorney General for the environment and natural resources division at the U.S. Department of Justice from 2003 to 2006. Prior to her government service, Ms. Neumayr was in private legal practice from 1989 to 2003. She received her B.A. from Thomas Aquinas College and her J.D. from the University of California, Hastings College of the Law.

Kelvin Droegemeier — OSTP: Finally, the Senate also approved Kelvin Droegemeier to serve as the director of the White House Office of Science and Technology Policy (OSTP). A meteorologist from the University of Oklahoma, Mr. Droegemeier previously served as Oklahoma Governor Mary Fallin’s secretary of science and technology. He was also previously on the National Science Board for 12 years during the George W. Bush and Barack Obama administrations.

This post was written by Lynn L. Bergeson, Christopher R. Bryant and Margaret R. Graham of Bergeson & Campbell, P.C.

Fourth Circuit Expands Title IX Liability for Harassment Through Anonymous Online Posts

The Fourth Circuit recently held that universities could be liable for Title IX violations if they fail to adequately respond to harassment that occurs through anonymous-messaging apps.

The case, Feminist Majority Foundation v. Hurley, concerned messages sent through the now-defunct app Yik Yak to the individual plaintiffs, who were students at the University of Mary Washington. Yik Yak was a messaging app that allowed users to anonymously post to discussion threads.

Because of the app’s location feature, which allowed users to see posts within a 5 mile radius, the Court concluded that the University had substantial control over the context of the harassment because the threatening messages originated on or within the immediate vicinity of campus. Additionally, some of the posts at issue were posted using the University’s wireless network, and thus necessarily originated on campus.

The Court rejected the University’s argument that it was unable to control the harassers because the posts were anonymous. It held that the University could be liable if it never sought to discern whether it could identify the harassers.

The dissent encouraged the University to appeal the decision stating that “the majority’s novel and unsupported decision will have a profound effect, particularly on institutions of higher education . . . Institutions, like the university, will be compelled to venture into an ethereal world of non-university forums at great cost and significant liability, in order to avoid the Catch-22 Title IX liability the majority now proclaims. The university should not hesitate to seek further review.”

This post was written by Kathleen E. Dion of Robinson & Cole LLP.

Read more about college and university legal news on the National Law Review’s Public Education Page.

The E-2 Visa: A Potentially Useful Tool in Cross-Border M&As

Changes to corporate structure, including mergers and acquisitions, can have enormous implications for the U.S. immigration status of key workers and potential new hires. When a U.S. company is acquired or formed because of a merger, and is majority-owned by a foreign entity or foreign national from an E-2 country, the E-2 Investor Visa may be available. In addition, the E-2 visa provides protections to cross-border investment between the two countries and the option to resolve investment disputes through international arbitration.

Who Can Use the E-2 Visa?

Typically, the E-2 visa is available to the principal investor as well as managerial, executive, or essential-skilled employees with the same nationality as the E-2 country, and the nationality of the majority owners of the E-2 company. To qualify, E-2 applicants must show they are actively investing or have invested a substantial amount of capital in a bona fide enterprise. An E-2 visa, issued for five years at the U.S. consulate overseas, allows an E-2 spouse to work and any E-2 children under 21 to study in the United States.

What Must the E-2 Visa Applicant Show?

The E-2 applicant, who submits the application directly to the E-2 visa offices at the pertinent U.S. consulate overseas, must include evidence of: 1) ownership; 2) nationality; 3) the substantial investment at risk explaining the path of the E-2 investment funds; 4) the corporate documentation of the E-2 company — in the cross border M&A transaction, this includes the purchase of the acquisition or the formation of the newly-merged company, evidencing 50 percent or more ownership by treaty national or nationals; 5) the applicant’s qualifications to direct and operate the E-2 company; 6) a detailed and complete business plan if the newly-formed U.S. company has existed for less than a year; and any other evidence the U.S. consulate requires.

How Does the U.S. Government Determine an Investment Is ‘At Risk’?

General E-2 visa processing considerations for founders, principal investors, or employees (those to be transferred from overseas or new hires) are to ensure that the substantial investment be one that is “at risk.” This means the capital must be subject to partial or total loss if investment fortunes reverse. Further, the E-2 applicant must show irrevocable commitment of funds to the U.S. E-2 company. The U.S. immigration rules allow the placement of funds in escrow pending approval of the E-2 visa with a legal mechanism that irrevocably commits funds but also protects investors if the E-2 application is denied. Commercial investments must be active (not passive), entrepreneurial, and cannot be made in nonprofit institutions.

What Constitutes a ‘Substantial’ Investment?

To establish that an investment is substantial, the U.S. Department of State uses a relative proportionality test that considers the amount of qualifying capital invested weighed against the total cost of purchasing or creating the E-2 company; the amount of capital normally considered sufficient to ensure the investor’s financial commitment to the success of the E-2 company; and the magnitude of investment to support the likelihood that the investor will successfully develop and/or direct the E-2 company. Thus, the lower the cost of the E-2 company, the higher, proportionally, the investment must be to be considered “substantial.” The E-2 investment cannot be marginal to only support the E-2 principal. The January 2017 Buy American, Hire American executive order is now an oft-cited requirement in E-2 investment applications. The E-2 investment must show the potential for hiring Americans and inducing economic growth in the area of the E-2 investment.

Conclusion

The U.S. government is more closely vetting immigration applications, and work visas like the E-2 in particular. To determine whether the E-2 visa may be the right option in light of a cross-border M&A, it is critical that foreign nationals consult with their immigration counsel.

This post was written by Maria Mejia-Opaciuch of Carlton Fields Jorden Burt, P.A.

Read more immigration news at the National Law Review’s Immigration Type of law page.

Connecticut’s Pay Equity Law Prohibits Salary History Inquiries

As of January 1, 2019, Connecticut employers are prohibited from inquiring about prospective employees’ wage or salary histories. Connecticut’s new pay equity law is intended to promote equality in pay and close the wage gap. Under the new law, employers—defined as entities having “one or more employees”—are also prohibited from using a third party to inquire about any applicant’s wage or salary history. Employers may still inquire about the components of an applicant’s compensation structure—for example, retirement benefits or stock option plans—but they may not inquire about the value of any individual component.

Nothing in the law prevents an employer from verifying salary information if a prospective employee voluntarily discloses such information. Additionally, the law does not apply where a federal or state law “specifically authorizes disclosure or verification of salary history” in the employment context.

A private right of action exists for violations of the law, and a prospective employee can potentially recover compensatory damages, attorneys’ fees and costs, and punitive damages. A two-year statute of limitations applies.

In light of this new law, Connecticut employers should revise their employment applications to remove any requests for candidates’ salary histories. Employers that have hiring policies and/or hiring scripts should revise these documents to remove any questions about salary histories. Further, employers may want to affirmatively state that it is the employer’s policy not to make such inquiries. Connecticut employers may also want to ensure that any employees involved in interviewing candidates are trained on the new law and understand that they should not be asking about salary history information. Finally, employers may want to verify that any third parties they are using to help screen candidates are aware of and in compliance with the new law.

This post was written by Kelly M. Cardin of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Read more employment updates on the National Law Review’s employment law page.

New Jersey Appellate Panel Countenances Beach Easement Condemnations for Federal Funding

A New Jersey appeals court recently upheld the Township of Long Beach’s exercise of eminent domain to acquire beachfront access easements in the consolidated appeal of Twp. of Long Beach v. Tomasi, N.J. Super. App. Div. (per curiam) – the latest chapter in a series of disputes between coastal New Jersey municipalities and owners of beachfront property within those municipalities.

The Township of Long Beach sought federal funding pursuant to the “Sandy Act,” which authorizes the Army Corps of Engineers (“Army Corps”) to protect the New Jersey shoreline through beach replenishment and dune construction projects funded either in whole or in part by the federal government. See Disaster Relief Appropriations Act, 2013 (Sandy Act), Pub. L. No. 113-2, 127 Stat. 4. In order to obtain such federal participation and funding, the township was required to comply with conditions set forth in the Army Corps’ engineering regulations, including the requirement that participating municipalities provide “reasonable public access rights-of-way” to the beach, defined as “approximately every one-half mile or less.” U.S. Army Corps of Engineers, ER 1105-2-100, Planning Guidance Notebook 3-20 (2000); see also N.J.A.C. 7:7-16.9.

As the township’s shoreline did not have the required public access, it resolved to obtain public access easements in various locations to achieve compliance with the Army Corps and NJDEP regulations such that it would be eligible for inclusion in an ongoing shoreline protection project undertaken by those entities. Accordingly, the township passed appropriate resolutions authorizing it to condemn and acquire via eminent domain four public access beach easements, including a ten-foot-wide strip of land along the defendants’ properties. After unsuccessfully negotiating with the defendants to purchase the easements, the township initiated condemnation proceedings in the Superior Court, giving rise to the Tomasilitigation.

In September 2017 the trial court entered summary judgment in favor of the township and held that it had properly exercised its eminent domain power in acquiring the beach easements for public use. The defendants appealed and sought reversal based on their contention that the township was unable to establish either necessity or proper public purpose for the condemnations. More specifically, the defendants argued that reasonable beach access already existed in the township such that there was no necessity to condemn the easements under the Public Trust Doctrine or otherwise; and that the stated impetus for the condemnations, i.e. seeking federal funding, could not constitute a viable public purpose.

On December 20, 2018, the two-judge appellate panel issued its decision affirming the lower court and rejecting both of the defendant-appellants’ primary arguments. The court noted its “limited and deferential” review of municipal exercises of eminent domain power, cited the traditionally broad conceptual scope of public use, and held that the township’s undertaking to protect its shoreline – including conforming to state or federal requirements to obtain project funding – was a proper public use or purpose.

There are several relevant takeaways from the Tomasi decision, though they should be understood with an important caveat. The court resolved the narrow question before it without engaging in a comprehensive or detailed legal analysis and as a result, land use practitioners and municipal personnel should be cautious not to overstate the holding in this brief unpublished opinion. Nevertheless, the Tomasi decision is significant based on its factual distinctions from more traditional beach easement litigations.

Specifically, the easements at issue in Tomasi were for perpendicular access to the beach and ocean rather than for dune construction. Though both dune construction and access easements relate to shore protection, the former directly enable and contribute to such protection, whereas the latter are merely incidental to it. In that sense, the Tomasi easements are arguably less justifiable than dune construction easements in the eminent domain context – and the defendants in Tomasi appeared to base their public purpose-driven arguments on precisely that premise. However, the court evidently did not find the above-described “direct vs. incidental” distinction meaningful and rejected the defendants’ argument, finding that pursuing federal funding for shoreline protection was a sufficient public purpose for eminent domain purposes.

Under the facts of this case, that is a logically defensible outcome, as the township’s acquisition of the access easements was a de-facto prerequisite for constructing dunes and otherwise protecting its shoreline area, per the Army Corps and NJDEP regulations. Accordingly, a possible implication for future cases is that the precise nature of the condemnation easement in question will not necessarily be dispositive, and the focus of a reviewing court’s inquiry instead will be whether such an easement is ultimately necessary to effectuate the contemplated shoreline protection program.

It is unclear if this premise informed the court’s decision in Tomasi. To the extent that it may have, it would be valuable for municipalities, property owners, and land use practitioners to know that the court employs a functional analysis in evaluating public use / purpose in eminent domain cases. Similarly, but conversely, it would be equally valuable for those stakeholders to know that the court did not equate access easements with dune construction easements but rather expanded the scope of eminent domain by permitting condemnation for easements which are merely incidental to shore protection.

Accordingly, the ambiguity in this space following the Tomasi decision is worth monitoring, both in that litigation as the Supreme Court considers whether to hear a (presently unfiled but) likely forthcoming appeal, and in future cases with similar or slightly different facts. Though its implications are presently limited, the Tomasi case clearly stands for the proposition that beach access condemnation easements to obtain federal funding for shore protection projects are permissible exercises of municipal eminent domain power.

This post was written by Kyle J. Campanile of Giordano, Halleran & Ciesla, P.C.

New Illinois Employee Reimbursement Law Effective January 1, 2019

Beginning January 1, 2019, employers in Illinois will have new requirements for reimbursing employee expenses. An amendment to the Illinois Wage Payment and Collection Act (IWPCA) is the first Illinois law regulating employer reimbursement for employees’ business-related expenditures.

Previously, the IWPCA did not address employee reimbursement, so employers were free to implement their own rules and procedures for reimbursing employees for business expenses. Under the IWPCA amendment, employers must reimburse employees for “all reasonable expenditures or losses required of the employee in the discharge of employment duties” for the primary benefit of the employer and authorized or required by the employer. An employer is not required to reimburse an employee for losses caused by the employee’s negligence, losses due to normal wear, or losses due to theft (unless the theft was the result of the employer’s negligence).

To initiate the reimbursement process, an employee must submit the expenditure, with supporting documentation, to the employer within 30 days of incurring the expense. If the employee lost a receipt or never received one, the employer must accept the employee’s signed statement as documentation for the expense.

The new law permits employers to place certain limitations on reimbursement by implementing a written expense reimbursement policy. If an employee fails to comply with the written policy, the employer will not be required to reimburse the employee. Additionally, if such a policy establishes specifications or guidelines for expenditures, the employer will not be required to pay any portion of the expenditure that exceeds the specifications. However, the written policy may not provide for no reimbursement or “de minimis” reimbursement and may not shorten the 30-day period for submitting expenditures.

To avoid any penalties associated with this IWPCA amendment, which include potential liquidated damages and attorneys’ fees, employers should review the law, 820 ILCS 115/9.5, to ensure compliance. Employers are also advised to contact their legal counsel with any questions regarding the new law or to create a written expense reimbursement policy in compliance with the IWPCA.

This post was written by Zachary J. Weber of Dinsmore & Shohl LLP.

As 2019 Approaches, Private Equity Investment in Health Care Shows No Signs of Slowing Down

As the year draws to a close, it’s clear that 2018 was another record year for private equity investment in health care. In its report on the top health industry issues of 2019, PWC’s Healthcare Research Institute recently highlighted the continued prevalence of private equity in health care transactions, and predicted even more private equity investment in the coming year. Below is an overview of the current and expected trends, as well as a few key considerations for private equity deals in the health care space.

Corporate health care buyers are likely to continue seeing steep competition from private equity firms…

According to the PWC report, since 2009 the number of health care deals involving private equity buyers or sellers has tripled, and the number of deals is projected to increase further in 2019. Private equity investment in health care remains diversified and frequent, with deals ranging from health care technology to the management of physician practices. Because the health care industry is expected to continue to grow — with CMS projecting national health spending to rise to 20 percent of GDP by 2026 — investment in health care is a relatively safe bet for private equity when compared to more volatile fields like technology. Further, private equity firms tend to be more aggressive in the bid process and more willing to move deals ahead quickly. As such, traditional health care companies seeking to acquire new lines of business face increased competition from private equity.

…but 2019 may bring additional opportunities for traditional health care companies to partner with private equity in acquisitions.

By partnering with private equity firms, health care companies can diversify their businesses while also mitigating some of the financial and operational risks that come with any deal. Partnerships between private equity and health care companies benefit from the strengths of both parties, enabling further growth while capitalizing on the health care companies’ existing expertise. Private equity firms’ willingness to invest in health care could also mean opportunities for health care companies to divest their non-core assets and refocus on their core business.

Regulatory Considerations for PE Health Care Deals

As with any highly-regulated industry, health care deals present regulatory hurdles for any prospective buyer, some of which may provide additional challenges in the private equity context.

Private equity deals often need to be structured to accommodate corporate practice of medicine (CPOM) issues. In states with CPOM prohibitions, private equity buyers cannot directly acquire medical practices. Instead, the prospective buyer would need to invest in or create a management company through which they manage the practice for a fee, which in many states is capped at a certain percentage of the practice’s revenue.

Regulatory filing requirements and the need for review and approval of deals by regulatory bodies often drive transaction timelines much longer than those to which private equity firms are accustomed. Some states can require up to 120 days’ notice prior to a change in ownership in certain health care companies. Involving regulatory counsel at the beginning of deal negotiations can help set reasonable expectations for timing while also letting the parties get a head start on the sometimes cumbersome filing requirements.

State licensing boards also often require disclosure of detailed information about the prospective ownership and management of licensed health care entities. This information can range from basic background checks to detailed financial information. While many states only require information about individuals who will be actively involved in the day-to-day operations of the health care business, some states require information about anyone with a five percent or greater ownership in the business, which sometimes requires an examination of ownership held by controlling entities, including parent, grandparent and great grandparent companies. Private equity firms should take this into consideration and consult with regulatory counsel about potential disclosure requirements and the feasibility of providing the required information when structuring deals.

Private equity activity in the health care industry presents many evolving opportunities and challenges, but one thing remains clear as 2018 winds down: growth in health care investment is full speed ahead.

This post was written by Cassandra L. Paolillo of Mintz.

Ninth Circuit Affirms Jury Verdict In Favor of Homeopathic Remedy for Flu-Like Symptoms

On November 8, 2018, the Ninth Circuit affirmed a jury verdict in a consumer class action deceptive advertising case in favor of Defendants Boiron Inc. and Boiron USA, Inc. (together, “Boiron”), the sellers of a homeopathic treatment for flu-like symptoms called Oscillococcinum (“Oscillo”). Although the Ninth Circuit’s memorandum decision is marked “Not for Publication” and therefore is non-precedential under Ninth Circuit rules, the decision is still worth noting, as jury verdicts in class action false advertising cases are rare.

According to the appellate briefs, Oscillo’s active ingredient is a compound (extracted from the heart and liver of the Muscovy duck for those foodies in our readership) that is subjected to a homeopathic dilution process. The diluted compound is then sprayed onto specially-manufactured granules. Plaintiff argued that, due to the homeopathic dilution process, Oscillo was essentially “water sprayed on sugar,” which could not provide the relief from flu-like symptoms that Boiron advertised. Plaintiff claimed that Boiron had therefore violated two California deceptive advertising statutes, the Unfair Competition Law (“UCL”) and Consumers Legal Remedies Act (“CLRA”).

At the conclusion of a one-week trial in the Central District of California, the jury found in Boiron’s favor that its representations that Oscillo relieves flu-like symptoms were not false. On appeal, the Ninth Circuit affirmed, finding that the jury verdict did not constitute plain error because Boiron presented sufficient evidence from which the jury could have concluded that Oscillo actually works against flu-like symptoms. This was a “battle of the experts” for the jury, the court wrote, that could not be relitigated on appeal. And the jury appeared to have believed Boiron’s expert, clinical studies, and anecdotal evidence more than it believed the plaintiff’s expert, according to the court.

The Ninth Circuit further noted that in explicitly finding that Boiron’s claim that Oscillo treated flu-like symptoms was not false, the jury must have implicitly rejected Plaintiff’s argument that Oscillo was merely a sugar pill or water sprayed on sugar. Nor did Plaintiff offer a theory of how Boiron’s representations could be false if the product did indeed treat flu symptoms.

Authored by: Lawrence I Weinstein and Tiffany Woo originally published at Proskauer Rose LLP Proskauer on Advertising Law Blog

EB-5 Processing During the Government Shutdown

The U.S. federal government shut down at the end of the day on Dec. 21, 2018, and the president did not sign into law the extension of the EB-5 program passed by the Senate. Until the shutdown ends, and the Regional Center EB-5 program extension is signed into law, no new I-526 petitions can be filed. To clarify, while EB-5 petitions may continue to be prepared, petitions cannot be mailed to USCIS until the conclusion of the shutdown and extension of the program. Please note, however, that investors must continue to file timely responses to USCIS Requests for Evidence (RFE) and Notices of Intent to Deny (NOID). In addition, investors may continue to prepare and file I-829 petitions.

With respect to the immigrant visa process, the State Department will cease to schedule new immigrant visa interviews until extension of the program is signed into law and the government resumes operations. If the interview was previously scheduled, and the Consular Post has not reached out to cancel said interview, the investor and family should still plan to attend. However, the immigrant visas will not be issued until the government resumes operations. The State Department will experience a significant slowdown and even cessation of all visa-issuing services during the period of the government shutdown. Furthermore, investors will be unable to file new DS-260 applications and supporting documents until the program is officially extended and the Visa Bulletin is updated.

With respect to the adjustment of status process, investors will be unable to file any new adjustment of status applications based on the I-526 petitions until the program is officially extended and the Visa Bulletin is updated. However, investors can continue to file renewals of employment authorization and advance parole, and should continue responding in a timely manner to USCIS’s RFEs relating to pending adjustment of status (I-485) applications. USCIS is unlikely to schedule any adjustment of status interviews until the conclusion of the shutdown and extension of the program.

This post was written by Jennifer Hermansky of Greenberg Traurig, LLP

More immigration news on the National Law Review Immigration Page.

Woo-Hoo! Workplace Civility Rules Upheld by NLRB General Counsel

Between 2009 and 2017, the National Labor Relations Board (NLRB) invalidated countless workplace employment policies – including those of non-union employers – where the agency found them to potentially infringe on workers’ rights under the National Labor Relations Act. Among the types of policies overturned were “positive workplace” or “workplace civility” rules, which were said to limit employees’ right to discuss the terms and conditions of their employment. While courts sometimes intervened to strike down these board decisions, the NLRB nevertheless largely held to its view.

However, in the wake of the Boeing case last year, the agency has been taking a fresh look at workplace civility rules. And those results are refreshing.

This week, the NLRB General Counsel’s office released a memo in which it analyzed a “Commitment to My Co-Workers” policy of a company. That policy required workers to “maintain healthy relationships” and to address conflicts with co-workers directly instead of behind their backs. Before the new standard announced in Boeing, that policy almost certainly would have been found to be unlawful. But relying on Boeing, the NLRB General Counsel determined the workplace civility rules at issue were permissible and that the company could require employees to sign off on the policy and even terminate ones who refused to do so.

This is great news for companies who want to promote positivity and healthy relationships in the workplace. It also serves as a reminder that under the NLRB’s current employment policy test enunciated in Boeing, many workplace policies that may have been rescinded due to board decisions issued between 2009-2017 may be worth revisiting in 2019.

This post was written by David J. Pryzbylski of Barnes & Thornburg LLP.

Category: Uncategorized

Senate Approves Nominations of Three Key Environmental Posts

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Fourth Circuit Expands Title IX Liability for Harassment Through Anonymous Online Posts

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