The Importance of Taking Care of Your Mental Health

2021/06/01

May is Mental Health Awareness Month. A month dedicated to raising awareness regarding mental health resources and helping to reduce the stigma around mental health struggles. Of course, legal battles occur all year round, and it is important to check in on yourself and your loved ones often. In particular, the weight of a divorce, custody disputes, and litigation over your family’s estate can be significant. Also, despite the number of divorces which occur every year, many people still feel lost and feel unable to process what is happening. As your lawyer, we can help you through the legal process, explain the steps, give you advice, strategize, and plan. And while it may feel sometimes that we are also your therapist, we are not. That said, as family law and estate planning attorneys, we are in a unique position to have a network of mental health professionals from whom we can obtain referrals. A mental health professional can assist you in many ways. If you are dealing with a high conflict custody case, many families are referred for “co-parenting counseling” or “family therapy” where the family can attempt to work out various disputes, big and small, which have hampered the family’s ability to work together cohesively for the children. A mental health professional can also be helpful on an individual capacity with personal, individual therapy to help you digest this significant change in your life. They also can be just a person to talk to, that is unbiased and confidential. One thing that comes up often in family law litigation is a lack of confidence in your future, which may have nothing to do with the financial impact of what you are going through and may have an underlying cause. A mental health professional can be a resource to work through those fears, help you build on and acknowledge your own worth, strength and progress. Read More

Tax Credit Provides Direct Relief for COVID-19 Leave

2021/04/27

Takeaway: Intended to provide direct relief to small businesses, the ARP employer tax credit provides an excellent opportunity for employers to reduce their tax liability. Small business owners may be eligible for additional financial relief to assist in recovery from the COVID-19 pandemic under the new American Rescue Plan (ARP) signed into law on March 11, 2021. Under the ARP, small and midsize employers may be eligible to claim tax credits to reimburse the costs of providing paid sick and family leave to employees due to COVID-19. This includes time taken by employees to receive or recover from COVID-19 vaccinations. Pursuant to a fact sheet recently released by the IRS, here are some of the key provisions for employers. Eligible Employers Include: Any business with fewer than 500 employees. Tax exempt organizations (excluding certain federal government agencies). Self-employed individuals may be eligible for similar credits. Employers may take the tax credits for wages paid for leave taken by employees related to COVID-19 vaccinations and recovery. The relevant time frame is employee leave between April 1 through September 30, 2021. Employers can receive credit for the time that their employees are unable to work or telework. Leave includes the time necessary for employees to receive a COVID-19 vaccination and recover from any condition caused by the vaccination. The ARP Leave Credits act as Tax Credits Against Employer’s Share of Medicare Tax If the credits exceed the employer’s share of Medicare tax, the excess is refunded directly back to the employer. The Tax Credit is Equal to Sick Leave Wages Paid for COVID-19 Related Reasons For Individuals: up to two weeks (80 hours), limited to $511 per day and $5,110 in the aggregate, at 100 percent of the employee’s regular rate of pay. For Family Leave Wage: up to twelve weeks, limited to $200 per day and $12,000 in the aggregate, at 2/3rds of the employee’s regular rate of pay. Read More

Estate Planning in a Virus World

2021/04/08

The pandemic has affected different people in different ways.  One thing that I have seen during the pandemic is that people are much more focused on the provisions of their estate plan.  I guess the pandemic has brought into focus the frailty of life and therefore people want to make certain that they have adequate plans in place.  Some people are creating an estate plan who had not previously done so and other people with comprehensive estate plans are reviewing them to make certain their decisions contained therein are still appropriate.  Below I will set forth some things everyone should think about in reviewing or creating an estate plan. Who are the beneficiaries?  Most people provide for their spouse and/or children in the estate plan.  One of the considerations is whether the beneficiaries receiving gifts are of sufficient age and sophistication to receive assets outright.  If not, we frequently use a Trust to provide someone (a Trustee) to handle the assets and distribute funds to the beneficiaries pursuant to the terms stated in the estate planning documents.  Estate planning becomes especially difficult for individuals who do not have a spouse or even more difficult for those who do not have children.  Frequently people in those circumstances avoid estate planning because the decisions as to who are to be the beneficiaries are very difficult for them to reach.  Sometimes it involves charities and sometimes it involves more distant relatives or friends.  It is frequently the case that we need to have several consultations to work through making those decisions. Who are the Representatives?  Under every Will there needs to be an Executor appointed who stands in the shoes of the Decedent after death and accomplishes the collection of assets, payment of bills and after all debts and taxes are paid, making distribution to the beneficiaries identified in the Will.  Read More

Uncertain Future: Rethinking the Law Firm Lease Post-COVID-19

2021/03/26

Due to COVID-19’s impact, the commercial office market should fundamentally shift in favor of tenants for the next several years. Law firm tenants should find an environment characterized by friendly concessions, options across asset classes and price ranges, and limited competition for space. Here are some market factors: Global office vacancy will rise from a pre-pandemic rate of 10.9% to 15.6% next year. See, https://www.cushmanwakefield.com/en/insights/covid-19/global-office-impact-study-and-recovery-timing-report Rents in the United States likely will fall 6.5% this year and 2.3% in 2022. https://www.bloomberg.com/news/articles/2020-09-23/office-leasing-seen-remaining-below-pre-covid-levels-until-2025 The length of lease terms has dropped to a five-year low. https://www.us.jll.com/en/trends-and-insights/research/office-market-statistics-trends So, what does all of this mean to your law office? If you are negotiating a new lease, or renegotiating an existing one, consider including these seven provisions: Contraction Option. A contraction option is a right to reduce the size of a tenant’s leased premises. As office space needs change, the firm may want to reduce square footage. In seeking to reduce your law office footprint, you should be prepared to negotiate the responsibility for the cost to physically redemise the space. Shorter Terms. Commercial office landlords generally desire longer term leases (typically seven to 10 years) to maximize a building’s value for financing purposes. Tenants conversely prefer the inherent flexibility of shorter-term leases. Given the anticipated oversupply for the next several years, you should be poised to negotiate a shorter lease term, while recognizing that a shorter-term lease may impact a landlord’s willingness to fund space improvements and to provide other financial incentives, such as an upfront period of free or reduced rent. Option to Terminate Early. Be prepared to experience a period of trial and error as you attempt to quantify office space needs. Where there is a sizable oversupply of office space, a law firm could become an “office nomad” of sorts and set up shop in less costly space (through a direct lease or sublease) as such space becomes available. Read More

PA Superior Court Gives Plaintiffs Upper Hand When Choosing Venue

2021/03/22

Takeaway: Big Corporations can be sued anywhere they conduct business, no matter how insignificant the local sales are compared to the national sales. Although plaintiffs have the advantage in choosing the forum, defendants have the assurance that they cannot be sued in forums where they do not conduct significant business. On March 8, 2021, that assurance became smaller – by about 95.995%.  In an en banc opinion, the Pennsylvania Superior Court determined that venue was proper in Philadelphia County even though Defendant’s, Husqvarna Professional Products (HPP), local sales only accounted for .005% of its $1.4 billion national sales. The Pennsylvania Rules of Civil Procedure provide that venue is proper against a corporation or similar entity in a county where it “regularly conducts business.” In determining whether venue is proper under this Rule, courts “employ a quality-quantity analysis.” In ruling that venue was not proper in Philadelphia County, the trial court determined that Defendant satisfied the quality prong, but not the quantity prong; the trial court granted Defendant’s motion to transfer the case to Buck’s County. On appeal, the Pennsylvania Superior Court held that it was an abuse of discretion for the trial court to rely almost exclusively on the percentage of defendant’s business in a county when addressing whether venue was proper. Specifically, the Court noted “[t]he percentage of a company’s overall business that it conducts in a given county, standing alone, is not meaningful and is not determinative of the ‘quantity’ prong. Each case turns on its own facts, and we must evaluate evidence of the extent of a defendant’s business against the nature of the business at issue.” The Court determined that because “the percentage of sales a multi-billion-dollar company makes in a particular county will almost always be a tiny percentage of its total sales [,] Courts thus should not consider percentages in isolation.” Read More

Poster Child for Divestiture: First-of-Its-Kind Divestiture Remedy in Private Merger Challenge

2021/03/10

Takeaway: Typically, avoiding a challenge by the DOJ, means a green light for the parties to a significant corporate merger transaction. However, in cases where an actual duopoly has been created, a court may change that light to red, and even unwind the transaction years later. On February 18, 2021, the Fourth Circuit Court of Appeals issued a historic ruling that held that a district court was within its rights to issue a divestiture order after Jeld-Wen violated antitrust law when it acquired and merged with CMI. Jeld-Wen, a leading world-wide manufacturer of doors and windows, must unwind its merger. This divestment order follows a contentious court battle between Steves & Sons, Inc. “Steves,” and Jeld-Wen. Five years after Steves first filed a breach-of-contract and antitrust claim in the Eastern District of Virginia, the Fourth Circuit affirmed the divestment order. When Jeld-Wen merged with CMI in 2012, Steves, a family owned business for over 150 years, found itself trapped and forced to deal with a duopoly. Even though divestiture is the customary form of relief under the Clayton Act §7, prior to this year, no court had ordered divestiture in a private suit. In affirming the District Court’s divestment order, the Fourth Circuit called the case a poster child for divestment. Steves and Jeld-Wen sell “molded doors.” Jeld-Wen also manufactures doorskins. Jeld-Wen sold its doorskins to Independents—door manufacturer’s that don’t make their own doorskins—including Steves. In 2012, three companies manufactured doorskins in the U.S. Jeld-Wen held a 38% market share, Masonite held 46%, and CMI held the remaining 16%. By the end of 2012, Jeld-Wen held a 54% market share after merging with CMI. In addition to the market advantage this merger gave Jeld-Wen, Jeld-Wen gained CMI’s manufacturing plant in Towanda, PA. Steves entered into a long-term purchase agreement with Jeld-Wen in May 2012, and almost immediately issues surfaced. Read More

Warning to Businesses: Pa. Supreme Court Rules State of Mind Irrelevant to Proof of Unfair Trade Practices Claim

2021/03/04

Takeaways: Plaintiffs claiming violations of the Unfair Trade Practices and Consumer Protection Law are not required to prove that the defendant intended to deceive or defraud. Companies doing business directly with consumers can be held strictly liable for deceptive sales practices even when the alleged misrepresentations were unintentional or negligent. In a decision likely to have broad ramifications for consumer protection claims in Pennsylvania, our Supreme Court has ruled that plaintiffs claiming violations of the Unfair Trade Practices and Consumer Protection Law are not required to prove that the defendant intended to deceive or defraud.  The Court’s 4-3 majority ruling in Gregg v. Ameriprise Financial, Inc., ___ A.3d ___, No. 29 WAP 2019, 2021 WL 607486 (Pa. Feb. 17, 2021), firmly establishes that companies doing business directly with consumers can be held strictly liable for deceptive sales practices even when the alleged misrepresentations were unintentional or negligent. Gary and Mary Gregg originally sued Ameriprise and its agent, Robert A. Kovalchik, alleging that Kovalchik made material misrepresentations to the Greggs to induce them to buy certain insurance policies.    They claimed that they relied on Kovalchik’s advice and liquidated their investment accounts and insurance policies to re-invest the proceeds in a variable life insurance policy and several other investment accounts established by Kovalchik and Ameriprise.  The Greggs alleged that Kovalchik did not invest the money in the accounts and insurance policies as he had promised, and that the actual investment activity carried out by Kovalchik increased his commission significantly. The Greggs’ lawsuit asserted violations of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law, as well as common law claims for breach of fiduciary duty, negligent misrepresentation and fraudulent misrepresentation.  The jury trial on the common law claims resulted in a verdict in favor of the defendants.  The parties then proceeded to a bench trial Consumer Protection Law claims, after which the trial court entered a verdict in favor of the Greggs in the amount of  $52,431.29. Read More

So You Want to Implement a Mandatory Vaccination Policy – What Should You Know?

2021/02/23

Many employers are considering implementing a mandatory vaccination policy. Can you? Yes. Should you? It depends on your business, and consideration of the following issues: Accommodating Certain Employees—Your company can implement a mandatory vaccination policy requiring all employees to be vaccinated before returning to the office. However, the policy must recognize that the company may need to make accommodations, if feasible, for certain employees who oppose getting vaccinated for religious or medical reasons. Using Third Party to Administer Vaccine—If your company retains someone to give the vaccine on-site, it must ensure that no confidential medical information is obtained in the process. When using a third party to administer the vaccine, the company can require proof from that third party that the vaccine was administered. But again, the company should not have access to the employee’s confidential medical information. Employees that Refuse Vaccine—Your company must be prepared for employees who refuse to get the vaccine for medical, religious or other reasons. If an employee refuses to get the vaccine, your company would have to engage in an interactive process to determine whether that employee being in the workplace without being vaccinated would pose a direct threat to other employees. In assessing that direct threat, your company would need to engage in an individualized assessment and consider the following four factors as to the unvaccinated employee: (1) duration of the risk; (2) nature and severity of the harm; (3) likelihood of the harm; and (4) imminence of the harm. A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite. If an employer concludes an employee is a direct threat, the employer might have grounds to terminate the employee, but only after considering whether the employer is able to accommodate the employee working remotely. Read More

PPP Forgiveness: 7 Commonly Asked Questions and Answers

February 22, 2021

The Paycheck Protection Program (PPP) provided much needed assistance to small businesses affected by COVID-19. While the PPP is a small business loan program within Section 7(a) of the Small Business Act, PPP loans are subject to payment deferral and immediate forgiveness if the borrower uses the funds in an authorized manner. As loan forgiveness is the highlight of the program for most small businesses, it is important to understand the requirements for forgiveness. Here are answers to seven of the most asked questions regarding loan forgiveness. I received a loan under a Small Business Administration (SBA) Program in response to COVID-19. Will it be subject to forgiveness? Not necessarily. Only PPP loans are subject to forgiveness. Other SBA loans, including an Economic Injury Disaster Loan (EIDL), are generally not subject to forgiveness even if used in response to COVID-19. However, there may be an exception for certain portions of EIDL funds or if you received an EIDL and then later refinanced those proceeds into a PPP loan. How must the business use the PPP funds to be eligible for forgiveness? A PPP loan may be forgiven if the borrower used those funds to maintain employment and salary levels during the eight to twenty-four weeks (the “Covered Period”) after receipt of funds. A borrower may also use PPP funds for limited non-payroll expenses such as rent payment or utilities. However, a borrower cannot use more than 40% of its loan funds for non-payroll expenses. When can I apply for forgiveness? A borrower can apply for forgiveness once they have used all loan proceeds for which they are requesting forgiveness. A borrower cannot request forgiveness on proceeds not yet used. Under the terms of the PPP, a borrower may request forgiveness at any point prior to the maturity date of the loan. Read More

Safeguarding Trade Secrets While Your Employees Work From Home

February 17, 2021

Within the last year millions of employees find themselves working from home for the first time. With the sudden shift to working from home, companies are facing new and unique challenges in order to protect trade secrets and confidential information. Trade secrets can include formulas, drawings, patterns, compilations including customer lists, programs, devices, methods, techniques, and processes. There are several ways you can protect your valuable trade secrets while your employees work from home. Here’s how to do it. The value of trade secrets lies in the competitive advantage they provide your company. Today, information is more easily shared, putting trade secrets more at risk than ever before. The risk of failing to protect a company’s trade secrets in the context of remote work has markedly increased. Employees and the devices on which trade secrets are stored and viewed may be under less direct corporate supervision. The penalty in lost intellectual property and company investment can be significant, if not catastrophic. The law requires that a company take “reasonable measures” to protect its trade secrets. What are “reasonable measures” when most of a company’s work force is working remote? We recommend the following steps in order to protect trade secrets in a remote work environment. These initiatives will require company-wide coordination among different departments, including IT, HR, legal, and management. Clearly identify for employees what specific information your company considers to be trade secrets. Mark the documents with a stamp or watermark that says, “TRADE SECRET”. Don’t stamp something as a trade secret unless it is a trade secret. By claiming an overly broad swath of information to be trade secrets, a company risks confusing its employees. Remind remote employees periodically that the protection of trade secrets is a corporate priority. Pop-ups can reiterate the importance of security each time a trade secret is accessed via electronic device. Read More