Tag: business

The Domestic Content Bonus Credit’s Promising New Safe Harbor

On May 16, 2024, the Internal Revenue Service (IRS) published Notice 2024-41 (Notice), which modifies Notice 2023-38 (Prior Notice) by providing a new elective safe harbor (Safe Harbor) that will allow taxpayers to use assumed domestic cost percentages in lieu of percentages derived from manufacturers’ direct cost information to determine eligibility for the domestic content bonus credit (Domestic Content Bonus). The Notice grants a promising reprieve to the Prior Notice’s relatively inflexible (and arguably impracticable) standard on seeking direct cost information from manufacturers, raising novel structuring considerations for energy producers, developers, investors and buyers.

The Notice also expands the list of technologies covered by the Prior Notice (Applicable Projects).

In this article, we share key takeaways from the Notice as they apply to energy producers, developers and investors and provide a brief overview of the Domestic Content Bonus as well as a high-level summary of the Notice’s substantive content.

IN DEPTH

KEY TAKEAWAYS FROM THE NOTICE

The Notice provides a key step forward in eliminating qualification challenges for the Domestic Content Bonus by providing an alternative to the Prior Notice’s stringent requirement of seeking direct cost information from manufacturers. In short, a taxpayer can aggregate the assumed percentages in the Notice that correspond with the US-made manufactured products in its project. If the assumed percentages total is greater than the manufactured product percentage applicable to such project (currently 40%), then the taxpayer is treated as satisfying the manufactured product requirement. Although the Notice promises forthcoming proposed regulations that could amend or override the Notice, this gives taxpayers time to appropriately interpret the latest rules and respond accordingly.

The new guidance’s impact will likely require restructuring to the existing development of energy projects as it relates to the Domestic Content Bonus. Below, we outline some key considerations for energy producers, developers, investors and buyers alike:

  • The Safe Harbor is expected to dramatically increase the availability of the Domestic Content Bonus. The Prior Notice’s challenging cost substantiation requirements left most industry participants on the sidelines. Initial feedback from developers, investors and credit buyers was extremely positive, and we have already seen fulsome renegotiation and speedy agreement between counterparties over domestic content contractual provisions in project documents.
  • While the Safe Harbor eliminates the requirement to seek direct cost information from manufacturers for certain Applicable Projects, a taxpayer’s obligations with respect to substantiation requirements for manufacturers’ US activities is not clear in the Notice. Given the standing federal income tax principles on recordkeeping and substantiation, taxpayers should carefully reconsider positions on diligence and review existing relationships with manufacturers.
  • Although the Notice expressly provides that the Safe Harbor is elective with respect to a specific Applicable Project, it’s unclear whether the Safe Harbor is extended by default to any and all of a taxpayer’s Applicable Projects upon election effect or whether an elective position is required with respect to each Applicable Project. Taxpayers, especially those with multiple Applicable Projects, should consider the various implications resulting from an elective position prior to reliance on the Safe Harbor.
  • For Safe Harbor purposes, the Notice provides a formula for computing a single domestic cost percentage for solar energy property and battery energy storage technologies that are treated as a single energy project (PV+BESS Project), but ambiguity exists as to whether such technologies should be aggregated for other purposes under the investment tax credit.
  • It’s unclear how the calculations would operate for repowered facilities given the assumed domestic cost percentage approach.
  • The Notice limits the Safe Harbor to solar photovoltaic, onshore wind and battery energy storage systems, leaving taxpayers with other types of Applicable Projects stranded with the Prior Notice. For example, the Notice does not cover renewable natural gas or fuel cell. The IRS seeks comments on whether the Safe Harbor should account for other technologies, the criteria and how often the list of technologies should be updated. Affected taxpayers should fully consider the requested comments and provide feedback as necessary.
  • The IRS seeks comments on various issues with respect to taxpayers who have a mix of foreign and domestic manufactured product components (mixed source items). Taxpayers with mixed source items that the Notice attributes as disregarded and entirely foreign sourced (notwithstanding the domestic portion) should take cautionary note and provide feedback as necessary.

BACKGROUND: THE DOMESTIC CONTENT BONUS CREDIT

The Inflation Reduction Act of 2022 spurred the creation of “adder” or “bonus” incentive tax credits. In pertinent part, Applicable Projects could further qualify for an increased credit (i.e., the Domestic Content Bonus) upon satisfaction of the domestic content requirement.

To qualify for the Domestic Content Bonus, taxpayers must meet two requirements. First, steel or iron components of the Applicable Project that are “structural” in nature must be 100% US manufactured (Steel or Iron Requirement). Second, costs associated with “manufactured components” of the Applicable Project must meet the “adjusted percentage” set forth in the Internal Revenue Code (Manufactured Products Requirement). For projects beginning construction before 2025, the adjusted percentage is 40%.

The Prior Notice provided guidance for meeting these requirements. Taxpayers should begin by identifying each “Applicable Project Component” (i.e., any article, material or supply, whether manufactured or unmanufactured, that is directly incorporated into an Applicable Project). Subsequently, taxpayers must determine whether the Applicable Project Component is subject to the Steel or Iron Requirement or the Manufactured Products Requirement.

If the Applicable Project Component is steel or iron, it must be 100% US manufactured with no exception. If the Applicable Project Component is a manufactured product, such component and its “manufactured product components” must be tested as to whether they are US manufactured. If the manufactured product and all its manufactured product components are US manufactured, then the manufacturer’s cost of the manufactured product is included for purposes of satisfying the adjusted percentage. If any of the manufactured product or its manufactured product components are not US manufactured, only the cost to the manufacturer of any US manufactured product components are included.

The core tension lies in sourcing the total costs from the manufacturer of the manufactured product or its manufactured product components. There’s a substantiation requirement on the taxpayer imposed by the Prior Notice, but there’s also a shrine of secrecy from the corresponding manufacturer.

Apparently acknowledging the need for reconciliation, the Notice aims to pave a promising path for covered technologies (i.e., solar, onshore wind and battery storage).

THE MODIFICATIONS: A PROMISING PATH FOR THE DOMESTIC CONTENT BONUS CREDIT

NEW ELECTIVE SAFE HARBOR

Generally

The Safe Harbor allows a taxpayer to elect to assume the domestic percentage costs (assumed cost percentages) for manufactured products. Importantly, the election eliminates the requirement for a taxpayer to source a manufacturer’s direct costs with respect to the taxpayer’s Applicable Project and instead allows for the reliance on the assumed cost percentages. The Notice prohibits any partial Safe Harbor reliance, meaning taxpayers who elect to use the Safe Harbor must apply it in its entirety to the Applicable Project for which the taxpayer makes such election.

The Safe Harbor only applies to the Applicable Projects of solar photovoltaic facilities (solar PV), onshore wind facilities and battery energy storage systems (BESS). Taxpayers with other technologies must continue to comply with the Prior Notice. Notably, the Notice expands Solar PV into four subcategories: Ground-Mount (Tracking), Ground-Mount (Fixed), Rooftop (MLPE) and Rooftop (String), each having differing assumed cost percentages for the respective manufactured product component. Similarly, BESS is expanded into Grid-Scale BESS and Distributed BESS, each with differing assumed cost percentages for the respective manufactured product component.

For solar PV, onshore wind facilities and BESS, the Safe Harbor provides a list via Table 1[1] (Safe Harbor list) that denotes each relevant manufactured product component with its corresponding assumed cost percentage. Each manufactured product component (and steel or iron component) are classified under a relevant Applicable Project Component.

Of note are the disproportionately higher assumed cost percentages of certain listed components within the Safe Harbor list. For solar PV, cells under the PV module carry an assumed cost percentage of 36.9% (Ground-Mount (Tracking)), 49.2% (Ground-Mount (Fixed)), 21.5% (Rooftop (MLPE)) or 30.8% (Rooftop (String)).

For onshore wind facilities, blades and nacelles under wind turbine carry an assumed cost percentage of 31.2% and 47.5%, respectively.

For BESS, under battery pack, Grid-scale BESS cells and Distributed BESS packaging carry an assumed cost percentage of 38.0% and 30.15%, respectively. Accordingly, projects incorporating US manufactured equipment in these categories are likely to meet the Manufactured Products Requirement with little additional spend. Conversely, projects without these components are unlikely to satisfy the threshold.

Mechanics of the Safe Harbor

Reliance on the Safe Harbor is a simple exercise of component selection and subsequent assumed cost percentage addition. Put more specifically, a taxpayer identifies the Applicable Project on the Safe Harbor list and assumes the list of components within (without regard to any components in the taxpayer’s project that are not listed). Then, the taxpayer (i) identifies which of the components within the Safe Harbor list are in their project, (ii) confirms that any steel or iron components on the Safe Harbor list fulfill the Steel or Iron Requirement, and (iii) sums the assumed cost percentages of all identified listed components that are 100% US manufactured to determine whether their Applicable Project meets the relevant adjusted percentage threshold.

The Notice addresses nuances in situations involving mixed 100% US manufactured and 100% foreign manufactured components that are of like-kind, component production costs and treatment for PV+BESS Projects.

The Notice also provides that a taxpayer adjusts for a mix of US manufactured and foreign manufactured components by applying a weighted formula to account for the foreign components.

Consistent with the Prior Notice, the Notice provides that the assumed cost percentage of “production” costs may be summed and included in the domestic cost percentage only if all the manufactured product components of a manufactured product are 100% US manufactured.

Lastly, in accordance with the view that a PV+BESS Project is treated as a single project, the Notice provides that a taxpayer may use a weighted formula to determine a single domestic content percentage for the project.

The numerator is the sum of the (i) aggregated assumed cost percentages of the manufactured product components that constitute the solar PV multiplied by the solar PV nameplate capacity and (ii) aggregated assumed cost percentages of the manufactured product components that constitute BESS multiplied by the BESS nameplate capacity and the “BESS multiplier.” The BESS multiplier converts the BESS nameplate capacity into proportional equivalency (i.e., equivalent units) to the solar PV nameplate capacity. The denominator is the sum of the solar PV nameplate capacity and the BESS nameplate capacity. Divided accordingly, the final fraction constitutes the single domestic content percentage that the taxpayer uses to determine whether its PV+BESS Project meets the relevant manufactured product adjusted percentage threshold.

Additionally, the Notice confirms that taxpayers can ignore any components not included in the Safe Harbor list. Compared with the Prior Notice, this can be a benefit for taxpayers with non-US manufactured products that are not on the Safe Harbor list. Conversely, for taxpayers with US manufactured products that are not on the Safe Harbor list, they lose the benefit of including such costs in the Manufactured Products Requirement. However, this is mostly a benefit because it eliminates any ambiguity surrounding the treatment of components not listed in the Prior Notice.

EXPANSION OF COVERED TECHNOLOGIES

The Notice adds “hydropower facility or pumped hydropower storage facility” to the list of Applicable Projects as a modification to Table 2 in the Prior Notice. The modification is complete with a list of a hydropower facility or pumped hydropower storage facility’s Applicable Project Components that are delineated as either steel or iron components or manufactured products, though no assumed cost percentages are provided. Further, the Prior Notice’s “utility-scale photovoltaic system” is redesignated as “ground-mount and rooftop photovoltaic system.”

CERTIFICATION

To elect to rely on the Safe Harbor, in its domestic content certification statement, a taxpayer must provide a statement that says they are relying on the Safe Harbor. This is submitted with the taxpayer’s tax return.

RELIANCE AND COMMENT PERIOD

Taxpayers may rely on the rules set forth in the Notice and the Prior Notice (as modified by the Notice) for Applicable Projects, the construction of which begins within 90 days after the publication of intended forthcoming proposed regulations.

Comments should be received by July 15, 2024.

CONCLUSION

While this article provides a high-level summary of the substantive content in the Notice, the many potential implications resulting from these developments merit additional attention. We will continue to follow the development of the guidance and provide relevant updates as necessary.

© 2024 McDermott Will & Emery
For more news on IRS Taxpayer Safe Harbor, visit the NLR Tax section.

US Issues Final Regulations on FEOC Exclusions from Clean Vehicle Credit

On May 6, 2024, the U.S. Department of the Treasury (Treasury) and Internal Revenue Service (IRS) published final regulations (Final Regulations) regarding clean vehicle tax credits under Internal Revenue Code sections 25E and 30D established by the Inflation Reduction Act of 2022 (IRA). Among other important guidance, the Treasury regulations finalized its rules on Foreign Entity of Concern (FEOC) restrictions regarding the section 30D tax credit. On the same day, in conjunction with the Treasury final regulations, the U.S. Department of Energy (DOE) published a final interpretive rule (Notification of Final Interpretive Rule) finalizing its guidance for interpreting the statutory definition of FEOC under Section 40207 of the Infrastructure Investment and Jobs Act (IIJA). The Treasury final regulations and the DOE final interpretive rule largely adopted the proposed regulations and interpretive rule on FEOC published by the Treasury and the DOE on December 4, 2023, with some important changes and clarifications.

DOE Final Interpretative Rule on FEOC

The DOE’s final interpretive rule confirms the major elements of the December 2023 proposed interpretive rule and clarifies the definition of “foreign entity of concern” by providing interpretations of the following key terms: “government of a foreign country,” “foreign entity,” “subject to the jurisdiction,” and “owned by, controlled by, or subject to the direction.”

The final rule does not make any changes to its interpretations of “foreign entity” and “subject to the jurisdiction,” but makes clarifying changes to its interpretations of “government of a foreign country” and “owned by, controlled by, or subject to the direction.”

Government of a Foreign Country

The DOE’s final interpretive rule does not change the framework of the definition of “government of a foreign country,” which includes, among other elements, current or former senior political figures of a foreign country and their immediate family members. However, in the specific context of the PRC, DOE makes substantial changes and clarifies that the definition of “senior foreign political figure” now also includes current and former members of the National People’s Congress and Provincial Party Congresses, and current but not former members of local or provincial Chinese People’s Political Consultative Conferences.

Moreover, the final rule further clarifies and broadens when an official will be considered “senior” as follows: “an official should be or have been in a position of substantial authority over policy, operations, or the use of government-owned resources” (emphasis added).

Owned by, Controlled by, or Subject to the Direction

The DOE’s final interpretive rule is largely consistent with the proposed interpretive rule for the interpretations of “owned by, controlled by, or subject to the direction,” but makes some clarifying edits in response to public comments.

  • Control by 25% Interest

The DOE’s final interpretive rule finalizes the 25% control test provided in the proposed interpretive rule and makes further clarifications to the method for calculating the control percentage. The 25% threshold is to apply to each metric (board seats, voting rights, and equity interests) independently, not in combination, and the highest metric is used for the FEOC analysis. For example, if an entity has 20% of its voting rights, 10% of its equity interests, and 15% of its board seats held by the government of a covered nation, the entity would be treated as being 20% controlled by the covered nation government (not combined 45% control).

  • Effective Control by Licensing and Contracting

The DOE’s final interpretive rule finalizes that licensing agreements or other contracts can create a control relationship for FEOC test purposes and has proposed a safe harbor for evaluation of “effective control.” The final interpretive rule provides a list of rights covering five categories that need to be expressly reserved under the safe harbor rule. One requirement is that a non-FEOC needs to retain access to and use of any intellectual property, information, and data critical to production. In response to public comments, the final interpretive rule makes compromise regarding this requirement and provides that the non-FEOC entities need to retain such access and use no longer than “the duration of the contractual relationship.”

Moreover, in the final interpretive rule, the DOE declines to expand the definition of “control” to include foreign entities that receive significant government subsidies, grants, or debt financing from the government of a covered nation.

Treasury Final Regulations on FEOC Restrictions

The Treasury’s final regulations cross-reference the DOE’s FEOC interpretive guidance regarding FEOC definitions. Similar to the DOE’s final interpretive rule, the Treasury’s final regulations generally follow the December 2023 proposed regulations regarding FEOC restrictions and compliance regulations relating to the section 30D clean vehicle tax credit, but have also made certain important modifications and clarifications outlined below:

Allocation-based Accounting Rules

For the FEOC restrictions, the Treasury final regulations make permanent the allocation-based accounting rules for applicable critical minerals contained in battery cells and associated constituent materials.

Due Diligence

The final regulations confirm that to satisfy the due diligence requirement for FEOC compliance, and in addition to the due diligence conducted by the manufacturers meeting the qualification requirements of the regulations (qualified manufacturers) themselves, the qualified manufacturers can also reasonably rely on due diligence and attestations and certifications from suppliers if the qualified manufacturers do not know or have reason to know that such attestations or certifications are incorrect.

Impracticable-to-trace Battery Materials

The final regulations finalize a transition rule, which provides that the FEOC restrictions will not apply to qualified manufacturers as to “impracticable-to-trace battery materials” before 2027. The term “impracticable-to-trace battery materials” replaces the proposed regulations’ reference to “non-traceable battery materials.” Impracticable-to-trace battery materials are defined in the final regulations as specifically identified low-value battery materials that originate from multiple sources and are commingled by suppliers during production processes to a degree that the qualified manufacturers cannot determine the origin of such materials. The final regulations also identify certain battery materials as constituting impracticable-to-trace battery materials. Qualified manufacturers may temporarily exclude impracticable-to-trace battery materials from the required FEOC due diligence and FEOC compliance determinations until January 1, 2027. To take advantage of this transition rule, qualified manufacturers must submit a report during the upfront review process as set forth in the final regulations, demonstrating how they will comply with the FEOC restrictions once the transition rule is no longer in effect.

Traced Qualifying Value Test

The final regulations provide a new test, the “traced qualifying value test,” for OEMs to trace the sourcing of critical minerals and determine the actual value-added percentage for each applicable qualifying critical mineral for each procurement chain.

Exemption for New Qualified Fuel Cell Motor Vehicles

The final regulations also confirm that the FEOC restrictions generally do not apply to new qualified fuel cell motor vehicles (with certain exception) as they do not contain clean vehicle batteries.

Conclusion

Under the final regulations and final interpretive rule, to take advantage of the section 30D tax credit, qualified manufacturers shall conduct FEOC and supply chain analysis and satisfy the due diligence, certification and other requirements. Moreover, for the qualified manufacturers that seek to rely on their battery suppliers’ due diligence and relevant attestations or certifications, they should consider incorporating terms in their contracts with such suppliers that require reporting and tracing assurances regarding battery materials and critical minerals.

The DOE’s final interpretive rule became effective on May 6, 2024. The Treasury’s final regulations will be effective on July 5, 2024.

© 2024 Miller, Canfield, Paddock and Stone PLC
For more news on FEOC Exclusions from Clean Vehicle Credit, visit the NLR Tax section.

EPA, USDA, and FDA to Clarify Overlapping Biotechnology Regulatory Frameworks

On May 8, 2024, the U.S. Environmental Protection Agency (EPA), U.S. Department of Agriculture (USDA), and U.S. Food and Drug Administration (FDA) released a joint plan to identify areas of ambiguity, gaps, or uncertainty in their coordinated regulation of biotechnology products. Consistent with a directive issued by President Biden in September 2022, the agencies’ plan identifies specific issues that each has either recently addressed or will work to address to promote such products’ safe use.

Key Takeaways

  • What Happened: EPA, USDA, and FDA issued a joint plan for regulatory reform under their Coordinated Framework for the Regulation of Biotechnology.
  • Who’s Impacted: Developers of PIPs, modified mosquitos, biopesticides, and other biotechnology products under EPA’s jurisdiction.
  • What Should They Consider Doing in Response: Watch the three agencies’ regulatory dockets closely and consider submitting comments once new rules or draft guidance are published that may affect their products.

Background

President Biden’s executive order defined “biotechnology” as “technology that applies to or is enabled by life sciences innovation or product development.” Biotechnology products thus may include organisms (plants, animals, fungi, or microbes) developed through genetic engineering or manipulation, products derived from such organisms, and products produced via cell-free synthesis. These products may, in turn, be regulated under the overlapping statutory frameworks of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), Federal Food, Drugs and Cosmetics Act (FFDCA), Plant Pest Act (PPA), Federal Meat Inspection Act, Poultry Products Inspection Act, and more. Therefore, close coordination between EPA, USDA, and FDA is essential to ensure effective and efficient regulation of biotechnology products.

EPA Sets Sights on PIPs, Mosquitos, and Biopesticide Products

The agencies’ newly released plan identifies five biotechnology product categories where regulatory clarification or simplification are warranted: (1) modified plants; (2) modified animals; (3) modified microorganisms; (4) human drugs, biologics, and medical devices; and (5) cross-cutting issues. Under the new plan, EPA is engaged in all but the fourth category above.

For example, EPA has already taken steps to clarify its regulation of modified plant products, such as exempting from regulation under FIFRA and FFDCA certain plant-incorporated protectants (PIPs) created in plants using newer technologies. EPA next plans to address the scope of plant regulator PIPs and update its 2007 guidance on small-scale field testing of PIPs to reflect technological developments and harmonize with USDA containment measures.

Regarding modified animal products, EPA intends to work with USDA and FDA to coordinate and provide updated information on the regulation of modified insect and invertebrate pests. Specifically, EPA intends to provide efficacy testing guidance on genetically modified mosquitos intended for population control. As outlined in guidance published by FDA in October 2017, products intended to reduce the population of mosquitoes by killing them or interfering with their growth or development are considered “pesticides” subject to regulation by EPA, while products intended to reduce the virus/pathogen load within mosquitoes or prevent mosquito-borne disease in humans or animals are considered “new animal drugs” subject to regulation by FDA.

EPA also now intends to prioritize its review of biopesticide applications, provide technical assistance to biopesticide developers, and collaborate with state pesticide regulators to help bring new biopesticide products to market more quickly.

Further, the three agencies are making efforts to collaborate with each other and with the regulated community. The agencies jointly released plain-language information on regulatory roles, responsibilities, and processes for biotechnology products in November 2023 and now intend to explore the development of a web portal that would direct developers to the appropriate agency or office overseeing their product’s development or regulatory status. The agencies also intend to develop a mechanism for a product developer to meet with all agencies at once early in a product’s development process to clarify the agencies’ respective jurisdictions and provide initial regulatory guidance; to update their joint information-sharing memorandum of understanding; and to formally update the Coordinated Framework for the Regulation of Biotechnology by the end of the year.

Biotechnology product developers should closely monitor EPA, USDA, and FDA’s progress on the actions described above, as well as other USDA- and FDA-specific regulatory moves. Developers should assess the regulatory barriers to their products’ entry to market, consider potential fixes, and be prepared to submit feedback as the agencies propose new rules or issue draft guidance for comment.

© 2024 Beveridge & Diamond PC
For more news on EPA, USDA, and FDA guidance, visit the NLR Administrative & Regulatory section.

6 Strategies for Recruiting Top Legal Talent

Recruiting top-tier legal talent is not merely a goal but a necessity for sustained success. Whether your firm is planning to strengthen expertise in niche practice areas or expand the firm’s capabilities, attracting and retaining adequate talent is one of the most critical aspects of the strategic planning process. However, the process of sourcing attorneys can be complex, requiring a multifaceted approach that taps into various channels and recruiting strategies. Your search must be thorough when looking for the best person for the job. Whether you lead a boutique law firm or a multinational megafirm, you must know all your options for locating your next, best hire. If you are curious about your options, we have you covered!

Here is Performlaw’s list of the top 6 ways to source and legal talent.

  1. Law School Recruiting

SUMMER ASSOCIATE PROGRAMS

Summer associate programs offer a structured platform for law firms to evaluate and engage with prospective hires. Law firms typically offer summer associate programs to law students between their second and third years of law school. These programs provide students with hands-on experience working in law firms to develop the fundamental skills for success as an associate. The skills summer associates typically focus on developing include legal research, drafting documents, and participating in client meetings and negotiations. Summer associates often rotate through different practice areas within the firm to gain exposure to various areas of law.

These programs are a win-win because they allow firms to evaluate potential future hires and allow students to assess whether they are a good fit for the firm and the practice area(s) in general. Having a summer associate program in place in your firm is a classic recruiting strategy that is a surefire way for law firms that want to grow and/or prepare for longevity in the industry.

Where you recruit matters! Many firms stick to Law Schools in their personal network or those near the physical geography of the firm. This is an excellent choice however, let’s consider how you can optimize your program. It is important to remember that the summer associate program presents the firm with an excellent opportunity to diversify the talent pool. Recruiting from schools that may not be within your typical network could position your firm to pull in fresh perspectives and improve your firm culture. We encourage you to be intentional about diversifying your talent pool! That means creating relationships with Private, State, and HBCU law schools and taking trips to recruiting events! This is especially important for firms who have taken the pledge to be a part of the Mansfield Rule!

NEW GRAD HIRES

Ok, so you have your summer associate program, and it is going well. If you want to grow your firm fast, double down on the new graduate hires! You should also consider recent graduates who have not participated in your summer associate program. Some law firm leaders get nervous about hiring new grads because they fear investing time and money into someone who might leave or underperform. Let’s be real: attrition is something no business owner enjoys, and being perfectly honest, anyone could leave you at any time for any reason; that is the reality of business. The best thing to do is to prepare in advance. Go in understanding that only a fraction of hires will stick around long term, and make peace with it; the key is to prepare your budget in advance with attrition in mind, but do not allow the idea of attrition to pre-defeat you in building your team. If your firm can afford to hire more than you would like to actually retain long-term, you should do it! Once attrition occurs, the firm is less likely to be unable to produce.

Recent graduates often bring fresh perspectives, cutting-edge legal knowledge, and a strong work ethic to the table. Their recent immersion in legal academia equips them with an up-to-date understanding of evolving legal principles and practices. Moreover, recent graduates tend to be highly adaptable, eager to learn, and open to guidance, making them valuable assets to any law firm; investing in their development can yield long-term benefits. By providing mentorship, training, and opportunities for growth, law firms can foster loyalty and retention, nurturing young talent into seasoned legal professionals who contribute significantly to the firm’s success.

Aside from funneling talent through your summer associate program, participating in on-campus recruiting events, job fairs, and networking sessions can facilitate connections with graduating students seeking entry-level positions. Offering competitive compensation packages, professional development opportunities, and flexible work models can incentivize graduates to choose your firm over competitors. Remember, don’t limit your firm to only choosing recruits from the top of the class. We urge you to broaden your perspective and challenge your firm to cultivate talent through your leadership and mentorship!

  1. Professional Legal Recruiting Services

Sometimes, you really don’t have the capacity or team to build out an entire summer associate program, or maybe you just really need a lateral hire, or perhaps you just prefer that a recruiting specialist handles the sourcing and recruiting for your firm. This is where legal recruiters come into play. Legal recruiters specialize in the legal industry and possess a deep understanding of its nuances, including the specific skills, qualifications, and experience required for various roles. This expertise allows them to efficiently identify candidates who not only meet the basic job requirements but also possess the desired cultural fit and potential for long-term success within the firm. By leveraging their industry knowledge and extensive networks, legal recruiters can save law firms significant time and resources in the hiring process.

Additionally, legal recruiters can provide valuable insights and guidance throughout the hiring process, from refining job descriptions to navigating salary negotiations, streamlining the entire recruitment journey, and reducing the risk of costly hiring mistakes. Also, legal recruiters offer a level of discretion and confidentiality that can be necessary when making hiring and onboarding moves in the competitive legal market. Confidentiality is often desired for both law firms and candidates, particularly when it comes to exploring new career opportunities or replacing existing positions. Legal recruiters understand the importance of discretion and can maintain confidentiality throughout the recruitment process, protecting the reputations and interests of both parties involved. This ensures that sensitive information remains secure and minimizes the potential for any disruptions or conflicts that could arise from a publicized job search.

We suggest using legal recruiters when you seek a lateral attorney or an attorney with a specialized skill set. Legal recruiters can expedite the recruitment process while ensuring the quality of hires. Of course, nothing worth having comes free, legal recruiters typically get paid through a contingency fee or a retained fee model. In a contingency fee arrangement, the recruiter is compensated only if they successfully place a candidate with the law firm, usually receiving a percentage of the candidate’s first-year salary. Alternatively, in a retained fee model, the law firm pays the recruiter upfront to conduct a thorough search for suitable candidates, regardless of whether a hire is made, with the fee often being a portion of the anticipated salary for the position. The specific payment structure may vary depending on the agreement between the law firm and the legal recruiter.

  1. Firm Website Careers Section

A well-curated careers section on the firm’s website serves as a primary point of contact for prospective candidates. Clear and comprehensive job postings detailing roles, responsibilities, and qualifications can attract qualified applicants. Additionally, showcasing the firm’s culture, values, and employee testimonials can resonate with potential candidates, fostering interest in joining the team.

Moreover, leveraging the careers section of the firm’s website as a platform for thought leadership can further enhance its effectiveness in attorney recruitment. Publishing blog posts, articles, or case studies that highlight the firm’s expertise in specific practice areas not only demonstrates its legal prowess but also serves as a magnet for top legal talent seeking opportunities for professional growth and development. Positioning the firm as a thought leader within the legal industry can attract candidates who are not only interested in the job but also in contributing to and learning from a team of experts.

Furthermore, the careers section can be utilized to provide insights into the firm’s career progression paths and professional development opportunities. Offering information about mentorship programs, continuing education initiatives, and opportunities for advancement can appeal to ambitious candidates who are looking to build long-term careers within the firm. Clear pathways for career growth not only attract talented individuals but also contribute to employee retention by demonstrating the firm’s commitment to investing in the success and fulfillment of its legal professionals. In essence, the careers section of the firm’s website serves as more than just a job board; it’s a window into the firm’s culture, values, expertise, and opportunities for professional advancement, making it a powerful tool for attorney recruitment and retention.

  1. Networking:

To optimize networking efforts in attorney recruiting, it’s essential to approach these interactions with a strategic mindset and genuine interest in building meaningful connections. While attending legal industry events, bar association meetings, and alumni gatherings, it’s important to engage with attendees rather than simply collecting business cards actively. Taking the time to listen to others, ask thoughtful questions, and share insights about the firm’s culture and opportunities can leave a lasting impression and lay the foundation for fruitful relationships. Additionally, participating in panel discussions, speaking engagements, or hosting informational sessions can further showcase the firm’s expertise and provide valuable networking opportunities.

In addition to attending organized events, cultivating relationships with legal professionals, alumni networks, and referral sources on an ongoing basis is crucial. Regular communication through personalized emails, phone calls, or coffee meetings can help nurture these connections and keep the firm top of mind when potential opportunities arise. Building rapport with individuals who may not be actively seeking employment but are well-connected within the legal community can also lead to valuable candidate referrals. By investing time and effort into cultivating a robust network of contacts, firms can tap into a diverse pool of talent and gain insights into the ever-evolving talent landscape.

Furthermore, leveraging technology can enhance networking efforts and extend the firm’s reach beyond traditional face-to-face interactions. Utilizing professional networking platforms such as LinkedIn allows firms to connect with legal professionals across geographic boundaries and engage with both active and passive job seekers. Engaging in relevant online discussions, sharing industry insights, and showcasing the firm’s thought leadership can help attract candidates who align with the firm’s values and vision. By integrating online networking with offline efforts, firms can create a comprehensive networking strategy that maximizes their ability to connect with top legal talent.

  1. Job Boards:

To effectively leverage job boards in attorney recruiting, firms must first identify the platforms that best align with their recruitment needs and target candidate demographics. Utilizing reputable job boards tailored to the legal profession, such as Lawjobs, Indeed Legal, and LinkedIn’s Legal Jobs section, ensures that job postings reach a qualified and relevant audience of legal professionals. These platforms offer features that allow firms to narrow down candidate searches based on specific criteria such as experience level, practice areas, and geographic preferences, helping to streamline the recruitment process and target candidates who best fit the role.

Crafting compelling job descriptions is essential to capturing the attention of potential candidates and encouraging them to apply. Job postings should clearly outline the responsibilities, qualifications, and expectations for the role, providing candidates with a comprehensive understanding of the position. Moreover, incorporating elements that highlight the firm’s unique selling points, such as its culture, values, and career development opportunities, can help differentiate the job posting from others and attract top talent. Additionally, leveraging targeted advertising on job boards can increase the visibility of job postings and ensure they are seen by the most relevant candidates. By strategically allocating advertising budget to promote job postings to specific demographics or geographic regions, firms can maximize their reach and attract qualified applicants.

Furthermore, job boards offer valuable insights and analytics that can inform recruitment strategies and optimize the effectiveness of job postings. Tracking metrics such as the number of views, applications received, and applicant demographics can help firms evaluate the success of their job board postings and make data-driven decisions to improve future recruitment efforts. Additionally, job boards may offer features such as applicant tracking systems (ATS) or candidate matching algorithms, which can streamline the recruitment process by organizing applicant data and identifying top candidates based on predefined criteria. By harnessing the capabilities of job boards and leveraging data-driven insights, firms can enhance their recruitment strategies and attract the best legal talent to join their team.

  1. Social Media:

Social media is a great way for law firms to enhance their attorney recruiting efforts by reaching a broader audience and engaging with passive candidates. Establishing and maintaining an active presence on professional networking sites such as LinkedIn, Instagram, TikTok, and Facebook allows firms to showcase their expertise, culture, and career opportunities to a vast network of legal professionals. By regularly updating profiles with engaging content, firms can demonstrate thought leadership within their practice areas, positioning themselves as attractive employers within the legal community.

Sharing thought leadership content on social media platforms showcases the firm’s knowledge and expertise and provides valuable insights into its values and culture. By publishing articles, blog posts, or case studies that demonstrate the firm’s legal acumen and innovative approaches to solving complex legal challenges, firms can attract the attention of passive candidates who may not have been actively seeking job opportunities. Additionally, highlighting firm achievements, such as successful case outcomes, client testimonials, or awards and recognitions, further enhances the firm’s credibility and reputation as an employer of choice.

Active participation in relevant discussions and industry groups on social media platforms can also help firms connect with potential candidates and build relationships within the legal community. By engaging in conversations, offering insights, and providing value to others, firms can establish themselves as trusted sources of information and foster meaningful connections with legal professionals. Moreover, actively responding to inquiries and messages from potential candidates demonstrates responsiveness and accessibility, further strengthening the firm’s reputation and appeal as an employer. By harnessing social media’s power, law firms can amplify their recruiting efforts and attract top legal talent to join their team.

By integrating these strategies, law firms can effectively attract and retain top legal talent, fostering a dynamic and successful legal practice.

©2024 PerformLaw
For more news on Recruiting Top Legal Talent, visit the NLR Law Office Management section.

House and Senate Hold Hearings on EPA’s FY 2025 Budget Request

On April 30, 2024, the House Appropriations Subcommittee for Interior, Environment, and Related Agencies held a hearing on the fiscal year (FY) 2025 budget request for the U.S. Environmental Protection Agency (EPA). The Senate Appropriations Subcommittee for the Interior, Environment, and Related Agencies held a separate hearing on EPA’s FY 2025 budget request on May 1, 2024, and the Senate Committee on Environment and Public Works held its own hearing on May 8, 2024. On May 15, 2024, the House Energy and Commerce Subcommittee on Environment, Manufacturing, and Critical Materials held a hearing. EPA Administrator Michael S. Regan testified before both of the House Subcommittees, the Senate Subcommittee, and the Senate Committee (written testimony is hyperlinked).

April 30, 2024, House Subcommittee Hearing

During the April 30, 2024, House Subcommittee hearing, Ranking Member Chellie Pingree (D-ME) asked for an update on EPA’s risk assessment of per- and polyfluoroalkyl substances (PFAS) in biosolids. Regan stated that EPA is working on issuing it in final in 2024, and it will include a focus on certain PFAS to help EPA understand better the specific risks posed to farmers and the uptake in crops and livestock. Regan noted that EPA is working with the U.S. Food and Drug Administration (FDA) and U.S. Department of Agriculture (USDA) to research the risk from biosolids application. EPA intends to hold the polluters responsible for the PFAS accountable and does not want farmers, water systems, or taxpayers in affected communities to bear the burden of the contamination.

As reported in our November 3, 2023, blog item, on November 2, 2023, EPA announced that it granted a petition filed under Section 21 of the Toxic Substances Control Act (TSCA) to address the use of the chemical N-(1,3-Dimethylbutyl)-N′-phenyl-p-phenylenediamine (6PPD) in tires. Representative Derek Kilmer (D-WA) asked whether EPA still planned to issue an advance notice of proposed rulemaking (ANPRM) under TSCA Section 6 by the end of 2024 to obtain more information to inform a subsequent regulatory action. Regan stated that EPA expects to issue the ANPRM by fall 2024.

May 1, 2024, Senate Subcommittee Hearing

During the May 1, 2024, Senate Subcommittee hearing, Senator Martin Heinrich (D-NM) asked Regan to explain how EPA will address PFAS contamination under the FY 2025 budget request. Regan noted that EPA recently issued its first-ever National Primary Drinking Water Regulation (NPDWR), which will reduce PFAS exposure to over 100 million people. EPA also announced grants available to help smaller communities comply with the NPDWR. According to Regan, EPA needs the resources and staff to have a comprehensive approach to protect water quality from PFAS. Regan stated that EPA would use the funding to continue to collect scientific evidence and to study how to design technology and health-based standards to protect as many people as possible from different forms of PFAS.

Senator Gary Peters (D-MI) noted that during a 2023 Senate hearing, Regan testified that EPA had an additional 29 PFAS on its radar for a similar drinking water update and asked Regan about the status of the rulemaking. Regan stated that through the Unregulated Contaminant Monitoring Rule, EPA is monitoring drinking water in communities across the United Sates for these 29 PFAS and that EPA intends to pursue regulation for these PFAS.

Senator Patty Murray (D-WA), Chair of the Senate Appropriations Committee, asked Regan about the key funding increases included in the FY 2025 budget request for some of EPA’s core programs. Regan stated that the increases are intended to allow EPA to keep up with recent progress that it has made. While EPA recently issued the NPDWR for six PFAS, there are an additional 29 PFAS being monitored, and thousands more. EPA wants to ensure the safety of chemicals before they hit the market, and that is one of the places where EPA has a deficit in terms of staffing. According to Regan, EPA is getting more requests from agricultural communities about herbicides and pesticides.

Senator Katie Britt (R-AL) stated that EPA’s recent Endangered Species Act (ESA) proposals, such as the Herbicide Strategy, could impose hundreds of millions of dollars in new restrictions on farmers. Britt asked Regan how EPA would implement Congress’s bipartisan instructions in the FY 2024 appropriations report to consider best available data on pesticide usage, conservation practices, and real-world studies on spray drift and water concentrations. Regan testified that previous EPA decisions spanning decades and court rulings have put EPA in a precarious position. According to Regan, EPA is speaking with the farming and agricultural community and has come up with strategies that have received positive feedback. Britt asked whether EPA would consider appointing designated non-federal representatives to help EPA meet its ESA responsibilities. Regan responded that EPA needs more staff and resources to respond to court decisions and that the particular EPA office is down to levels from the early 2000s. Regan stated that he would need to talk through the use of non-federal representatives and agreed to discuss the issue with Britt.

Subcommittee Chair Jeff Merkley (D-OR) asked Regan what Congress can do to accelerate a solution to replace 6PPD with something that works as well without harming salmon. Regan stated that EPA intends to publish an ANPRM by fall 2024 and that EPA is also researching mitigation efforts to fill in the gap until it can take regulatory action.

Ranking Member Lisa Murkowski (R-AK) noted that in its FY 2024 budget request, EPA proposed a significant decrease in discretionary funding because of new revenues coming in from the Superfund tax, while the FY 2025 request includes additional funding for the program. Murkowski asked Regan for his view of the long-term funding outlook for the Superfund program. Regan testified that the tax collections for the first two years were lower than forecasted by the U.S. Department of the Treasury. Because of the gap, for FY 2025, EPA has requested additional funding.

May 8, 2024, Senate Committee Hearing

Senator Cynthia Lummis (R-WY) described EPA’s designation of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) as flawed, stating that this would place the financial burden on passive receivers such as water utilities. More information on the designation and on EPA’s PFAS Enforcement Discretion and Settlement Policy Under CERCLA is available in our April 23, 2024, memorandum.

Committee Chair Thomas R. Carper (D-DE) asked Regan to describe the impact that the FY 2024 funding levels had on the TSCA program and what EPA could accomplish if it received the full amount requested in the FY 2025 budget request and maximized revenue collection through the recently updated TSCA fees rule. Regan stated that EPA received a small increase for TSCA in the FY 2022 and 2023 budgets, and it more than doubled the number of chemical reviews that it did each month. Without the funding in the FY 2025 budget request, EPA will see slower approval of new chemistries, especially for those companies in the semi-conductor, automotive, and battery sectors.

May 15, 2024, House Subcommittee Hearing

During the hearing held by the House Energy and Commerce Subcommittee on Environment, Manufacturing, and Critical Materials, Subcommittee Ranking Member Paul Tonko (D-NY) asked Regan what EPA is doing to address the backlog of new chemical reviews and what Congress can do to support EPA. Regan stated that with the budget increases that EPA received in 2022 and 2023, it more than doubled the number of new chemicals reviewed each month. According to Regan, EPA has reduced the backlog by half and prioritized new chemistries for the semi-conductor, automotive, and battery manufacturing sectors. According to Regan, without the funding in the FY 2025 budget request, EPA will see slower approval of new chemicals.

Representative Frank Pallone (D-NJ), Ranking Member of the Energy and Commerce Committee, noted that the reinstated Superfund tax has brought in lower receipts than projected by the Treasury and asked how EPA is adapting to the difference between the Treasury’s forecast and the actual funds collected. Regan testified that EPA is working with the Treasury Department to refine its estimates. According to Regan, the $300 million in the FY 2025 budget request will fill in the gap between the projected and actual tax receipts. Without the additional funding, Regan stated that there would be a slowdown in EPA’s ability to clean up Superfund sites. Pallone then asked Regan what the designation of PFOA and PFOS as CERCLA hazardous substances and EPA’s enforcement policy mean for different sectors. Regan responded that EPA is focused on the manufacturers responsible for the PFAS and will not pursue enforcement actions against sectors such as farmers or water systems.

Representative Randy Weber (R-TX) asked about EPA’s final rule amending the TSCA risk evaluation framework and its removal of the definition of “best available science.” Regan stated that he would have to get more context to respond to Weber. More information on EPA’s final rule is available in our May 14, 2024, memorandum.

Representative Dan Crenshaw (R-TX) asked Regan to comment on the almost 400 premanufacture notifications (PMN) awaiting a risk determination and the more than 90 percent that have passed the statutory deadline of 90 days. According to Regan, the issue predates the Biden-Harris Administration. Regan repeated that with the additional resources from Congress in 2022 and 2023, EPA has more than doubled the reviews completed each month.

Representative John Curtis (R-UT) noted that applications in EPA’s New Chemicals Program have dropped from 600 annually to just over 200 and that in the last two calendar years, EPA made 95 and 101 determinations, respectively. According to Curtis, although EPA is required by law to return fees if it misses deadlines, it has never returned the fee to an applicant when EPA has missed the deadline because applicants coincidentally suspend or withdraw their applications before the deadline. Curtis asked Regan to explain the coincidence of PMNs being suspended or withdrawn just in time to allow EPA to keep the money. Regan stated that he was unaware that applications were being withdrawn from EPA and committed to looking into it. Curtis stated that he has been told that EPA has effectively threatened applicants by phone to suspend or withdraw their applications and stated he would like Regan to look into this and report back. Regan committed to doing so. Curtis followed up by asking about EPA’s assumption that it can charge user fees covering 25 percent of the TSCA program’s budget, regardless of the cost. Regan responded that he is not sure that he agrees with the premise and that he needs to look at EPA’s performance with the budget that it did receive. Regan agreed to have a deeper conversation with Curtis on the topic.

Commentary

The hearings for EPA’s FY 2025 budget request were similar to the hearings for EPA’s FY 2024 budget request. Republicans pressed EPA on why it needs additional funding, criticizing the cost and reach of its current rulemakings, while Regan highlighted EPA’s obligations under federal statutes, including the Clean Water Act, the Safe Drinking Water Act, TSCA, the Federal Insecticide, Fungicide, and Rodenticide Act, and the ESA, as well as recent court decisions. On balance, no new information emerged.

©2024 Bergeson & Campbell, P.C.
For more news on EPA’s 2025 Budget Request, visit the Environmental, Energy & Resources section.

UK Regulators Publish Final Securitisation Rules

On 30 April 2024, the Financial Conduct Authority (FCA) published a policy statement (PS24/4) setting out its final firm-facing rules relating to securitisations and summarising feedback to its earlier consultation for the UK securitisation markets (CP23/17). The Prudential Regulation Authority (PRA and together with the FCA, the Regulators) also published a policy statement, in parallel with PS24/4, on its final firm-facing rules for those firms over which it has supervisory responsibility (PS7/24). This also follows the PRA’s own parallel consultation (CP15/23).

Background 

As part of the UK’s post-Brexit regulatory reforms, the UK government is working to repeal and replace retained EU financial services law with new UK domestic rules. In July 2023, the UK government published a draft statutory instrument (SI) to replace the UK’s onshored version of the Securitisation Regulation (UK SR).

Following the publication of the SI, the PRA launched CP15/23 on its proposed firm-facing requirements on 27 July 2023 and the FCA launched its parallel consultation CP23/17 on 7 August 2023. Both of these consultations are explored in further detail in our previous article (available here). While there is some duplication between the two rulebooks, the Regulators noted that they have coordinated their approach with a view to creating a coherent framework.

The Final Rules 

In PS24/4, the FCA has sought, among other things, to incorporate the feedback received on its draft rule proposals set out in its final rules, which are called the ‘Securitisation (Smarter Regulatory Framework and Consequential Amendments) Instrument 2024’.

PS24/4 makes the following key amendments to CP23/17:

  1. Timeline for implementation. The Regulators have confirmed the implementation timeline for the requirements (see the Next Steps section below), which allows for a six-month transition period for pre-implementation securitisations.
  2. Due diligence – public vs private securitisations. The FCA has adjusted the wording of its final rules to accommodate both public and private securitisations. Specifically, they refer to information provided ‘before pricing or original commitment to invest’ (in appropriate places) to reflect that private securitisations do not have “pricings” per se. In addition, the FCA has included guidance to reflect the fact that ‘pricing’ in the Simple, Transparent and Standardised (STS) template is to be understood as also including the ‘original commitment to invest’.
  3. Due diligence – disclosures by ‘manufacturers’. The FCA has adjusted the due diligence requirements for secondary market investors in relation to disclosures made by ‘manufacturers’ (i.e., the term used by the FCA as shorthand for originators, original lenders, sponsors and/or securitisation special purpose entities, each as defined in the UK SR) by:
    i) introducing a distinction between primary and secondary market investments, so that secondary market investors are not required to conduct due diligence on documents and information that are no longer relevant (e.g., information provided prior to initial pricing such as at issuance, etc.); and
    ii) clarifying that investors are required to conduct due diligence on the most up-to-date information available at the time of the investment, as opposed to documents from the timing of ‘pricing’ or ‘commitment’.
  4. Delegation. The FCA has clarified that it is possible for an institutional investor to delegate its due diligence requirements to an entity that is not an institutional investor, subject to the institutional investor retaining the responsibility for compliance with due diligence requirements. In practice, this means that institutional investors will no longer be able to delegate the responsibility for compliance with the due diligence requirements to AIFMs that are not authorised in the UK, as such AIFMs no longer fall within the definition of an ‘institutional investor’ under the SI.
  5. Risk-retention. The FCA has clarified the scope of the prohibition on hedging of the material net interest required to be retained under the risk retention requirements. Specifically, the FCA has confirmed that hedging in these circumstances is permitted for institutional investors so long as it does not compromise the alignment of interest, in line with the EU’s Risk Retention Technical Standards (Commission Delegated Regulation (EU) 2023/2175). In addition, the FCA confirms that there is no need for risk retention in the context of securitisations of own-issued debt instruments, including covered bonds.
  6. Alignment with the PRA. PS24/4 aligns its drafting with that of the PRA rulebook in areas where the rules are similar – both in the language and ordering of the FCA’s rules. The FCA has stated that in a number of cases, however, it has retained the language on which it consulted where, for example, it considered it provided clarity. In non-shared areas, such as STS provisions, the FCA has retained the language and structure of the rules as proposed in CP23/17.

The FCA’s final rules will be included in the FCA’s securitisation sourcebook (known as SECN) alongside the final FCA securitsation reporting templates, which are in the same form as those currently in effect. Similarly, the PRA’s final rules will be implemented into the PRA rulebook by adding a new Securitisation Part, with consequential amendments to the Liquidity Coverage Ratio (CRR) Part and the Non-Performing Exposures Securitisation (CRR) Part.

Next Steps 

The implementation date for the FCA and PRA rules is 1 November 2024, subject to revocation of the UK SR and related technical standards.

The commencement order that will bring into force the revocation of the UK SR and related technical standards has not yet been laid before Parliament. HM Treasury anticipates making this commencement order later this year once the SI comes into force. The FCA has stated that it will consider delaying or revoking the rules if the commencement order is not made.

The Regulators plan to consult on further changes to their securitisation rules in Q4 2024/Q1 2025, although timings are potentially subject to change. In this second consultation, the Regulators plan to review the definition of public and private securitisations and the associated reporting regime, among other areas for policy consideration.

EU Divergence

HM Treasury and the Regulators have generally sought to retain the existing onshored Securitisation Regulation and associated technical standards in the FCA and PRA rulebooks, save for some targeted adjustments. These adjustments will lead to some potentially notable divergence between the UK’s new regime and the regime in the EU, including in relation to the following:

  • Template requirements. While the EU requires institutional investors to ensure disclosure templates are completed regardless of whether the sponsor, originator or SSPE are located in or outside of the EU, UK institutional investors are only required to ensure that certain prescribed information is provided, regardless of the format. Instead, UK sponsors, originators and SSPEs are under a separate obligation to comply with transparency requirements including the use of disclosure templates.
  • Originator sole purpose test. SECN references certain factors to be taken into account when assessing whether an originator has been established and is operating for the “sole purpose” of securitising exposures. The EU regime has a similar test, but focuses on whether the securitisation and related risk retention assets are the “sole or predominant source of revenue” of the originator. The UK’s regime does not set the same hurdle for meeting the sole purpose test, instead referring more generally to the retainer’s ability to meet its payment obligations.
  • Change of risk retainer. Under the EU’s rules the holder of a retained interest may not sell, transfer or otherwise surrender its rights in relation to the retained interest, unless due to its insolvency, “legal reasons beyond its control”, or where there is retention on a consolidated basis. The new UK regime does not include “legal reasons beyond its control” as a reason to disapply the sale restriction.

PS24/4, PS7/24, CP23/17, and CP15/23 can be found here, here, here and here, respectively.

©2024 Katten Muchin Rosenman LLP
For more news on FCA Securitisation Rules, visit the NLR Financial Institutions & Banking section.

Appellate Division Provides Insight Into Rights Inherent to Tidelands Grants and Tidelands Licenses

A new unpublished case decided by the Appellate Division provides insight into how courts view those rights granted to the holder of tidelands grant versus those afforded by a tideland’s license. In the Matter of P.T. Jibsail Family Ltd. P’ship Tideland License involved the appeal of the issuance and modification to a tidelands license affecting properties owned by appellant Janine Morris Trust (“JMT”) and respondent P.T. Jibsail Family Limited Partnership (“Jibsail”) situated along Barnegat Bay. JMT argued that the approval of the modified tidelands license to Jibsail – allowing for the construction of a 300-foot-long dog-legged dock protruding into Barnegat Bay – was arbitrary, capricious, and/or unreasonable because the dock hampered JMT’s access to navigable waters.

In analyzing JMT’s argument the Appellate Division reviewed the fundamental differences between tidelands grants and tidelands licenses, including: (1) that a tidelands grant “is [a] conveyance in fee simple of real property,” Panetta v. Equity One, Inc., 190 N.J. 307, 309 (2007), while a tidelands license allows the licensee only “to rent an area of land . . . depicted on the [associated] plan”; and (2) that a tidelands grant generally extends the full width of the ripa or the width of the adjacent upland parcel whereas a tidelands license grants to the licensee the right to use only the area of tidelands circumscribed by a “license box” or an outline that closely approximates the size of the permitted structure and generally only includes water areas, not uplands. Ibid.

The Appellate Division noted that these differences affect the riparian rights associated with each means of conveyance. More specifically, a tidelands grant conveys to the riparian owner the right to the land under the water with that land extending far enough out to allow the riparian owner to access navigable water. Conversely, a tidelands license conveys to the licensee only the right to use the land under the water contained within the limited “license box”. As such, the licensee’s right to use adjacent water is no stronger outside of the “license box” than the riparian right of any other member of the public.

Applying these principles, the Appellate Division found that JMT’s ownership of a tidelands license did not prevent the State from claiming title to and managing the tidelands outside of JMT’s licensed area, nor did the license grant JMT any greater right than that of the general public to the navigable waters ostensibly impacted by Jibsail’s dock. Accordingly, the Appellate Division found the issuance of the tidelands license to Jibsail to be neither arbitrary, capricious, nor unreasonable.

© 2024 Giordano, Halleran & Ciesla, P.C. All Rights Reserved
For more news on Tidelands Licenses in New Jersey, visit the NLR Environmental, Energy & Resources section.

No Arbitration for Lead Buyer: Consent Form Naming Buyer Does Not Give Buyer Right to Enforce Arbitration in Tcpa Class Action

A subsidiary of Move, Inc. bought a data lead from Nations Info, Corp. off of its HudHomesUsa.org website. The subsidiary made an outbound prerecorded call resulting in a TCPA lawsuit against Move. (Fun.)

Move, Inc. moved to compel arbitration arguing that since its subsidiary was named in the consent form–it argued the arbitration clause necessarily covered it because the whole purpose of the clause was to permit parties buying leads from the website to compel TCPA cases to arbitration.

Good argument, but the court disagreed.

In Faucett v. Move, Inc. 2024 WL 2106727 (C.D. Cal. April 22, 2024) the Court refused to enforce the arbitration clause finding that Move, Inc. was not a signatory to the agreement and could not enforce it under any theory.

Most interestingly, Move argued that a motivating purpose behind the publisher’s arbitration clause was to benefit Move because Nations Info listed Opcity —Move’s subsidiary—in the Consent Form as a company that could send marketing messages to Hud’s users. (Mot. 1–2.)

But the Court found the Terms and Consent Form were two different documents, and accepting the one did not change the scope of the other.

The Court also found equitable estoppel did not apply because Plaintiff was not moving to enforce the terms of the agreement. Quite the contrary, Plaintiff denied any arbitration (or consent) agreement existed.

So Move is stuck.

Pretty clear lesson here: lead buyers should make sure the arbitration provisions on any website they are buying leads from includes third-parties (like the buyer) as a party to the clause. Failing to do so may leave the lead buyer stuck without the ability to enforce the provision–and that can lead to a massive class action with potential exposure in the hundreds of millions or billions of dollars.

Lead buyers are already forcing sellers to revise their flows in light of the FCC’s new one to one consent rules. So now would be a GREAT time to revisit requirements around arbitration provisions as well.

Something to think about.

© 2024 Troutman Amin, LLP
For more news on Telephone Lead Litigation, visit the NLR Communications, Media & Internet section.

Payday: Terminated Employee Awarded $78,000 in EEOC Settlement

Employees returning to work following a hospitalization or illness can present legally nuanced issues, particularly if an employer is considering terminating an employee in close proximity to such a leave. A recent case settled by a company with the Equal Employment Opportunity Commission (EEOC) highlights some of the legal risks that can come into play.

According to an EEOC press release: “The EEOC charged in [a lawsuit] that, in February 2022, [a company] fired a long-tenured receptionist, despite having recognized the 78-year-old employee as one of its employees of the year in January 2022. The receptionist’s termination came shortly after a brief hospitalization. The EEOC alleged that upon the receptionist’s return to work, [the company’s] general manager asked her how long she planned to continue to work, whether she needed to work, and whether she would prefer to spend her time traveling and seeing family instead of working.

Although the receptionist expressed her desire to continue working, and despite having never previously raised substantial performance concerns to the receptionist, the general manager told the receptionist that [the company] had lost confidence in her ability to work, citing her recent hospitalization. The receptionist was fired the next day and replaced by substantially younger employees.”

The EEOC alleged that these actions violated the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA), noting the alleged statements about “losing confidence” in the employee due to a hospitalization could be viewed as disability discrimination (the ADA defines “disability” very broadly), and the fact the employee was over the age of 40 (i.e., in the protected age group) and replaced with a younger employee could give rise to an inference of age discrimination under the ADEA.

The company elected to settle the allegations. As part of the settlement, the company agreed to pay $78,000 to the terminated employee. In addition, it entered into a two-year consent decree that also requires it to “revise its ADEA and ADA policies, post a notice in the workplace informing employees of the settlement, and train all employees and supervisors on their rights and responsibilities under both the ADEA and the ADA. Moreover, the company agreed to provide the EEOC with periodic reports regarding any future complaints of age or disability discrimination including a description of each employee’s allegations and the company’s response.”

Accordingly, this case serves as an important reminder that employee terminations should be carefully evaluated with respect to legal risks under various employment laws. Vetting such risks on the front end may mitigate pain on the back end.

© 2024 BARNES & THORNBURG LLP

International Groups Call for DOJ Whistleblower Program to Incorporate Best Practices

The Department of Justice (DOJ) is in the midst of developing a whistleblower award program. According to Acting Assistant Attorney General Nicole M. Argentieri, “the whole point of the DAG’s 90-day ‘policy sprint’ is to gather information, consult with stakeholders, and design a thoughtful, well-informed program.”

Since the Deputy Attorney General Lisa Monaco announced the policy sprint on March 7, whistleblower advocates in the U.S., including Kohn, Kohn & Colapinto, have consulted with the DOJ, outlining key elements of other successful whistleblower programs which should be incorporated in the DOJ program.

On May 13, a coalition of anti-corruption organizations and law firms from over twenty countries sent a letter to the DOJ emphasizing that an effective DOJ whistleblower program could greatly aid international anti-corruption efforts.

“We, the undersigned organizations, believe that a U.S. Department of Justice whistleblower rewards program has the potential to be instrumental to each of our anti-corruption efforts,” write the organizations.

“However, without careful consideration for the unique risks of international whistleblowers and without the implementation of the best-practice protocols identified above, this program could be damaging for international whistleblowers, and their catalytic role in transnational anti-corruption efforts,” the letter continues.

In the letter, the organizations call on the DOJ to incorporate four proven best practices for whistleblower award programs. These best practices mirror those previously called for by Kohn, Kohn & Colapinto. Allison Herren Lee, former SEC Commissioner and currently Of Counsel at Kohn, Kohn & Colapinto, outlined these four elements in a recent article for the Harvard Law School Forum on Corporate Governance.

The four recommendations are:

1. Mandatory Awards of 10-30% of Proceeds Collected

2. Anonymous and Confidential Reporting Channels

3. Dedicated Whistleblower Office

4. Eligibility Requirements which Match the SEC Whistleblower Program

Geoff Schweller also contributed to this article.

Copyright Kohn, Kohn & Colapinto, LLP 2024. All Rights Reserved.
For more on the DOJ Whistleblower Program, visit the NLR Criminal Law / Business Crimes section.