Publications Archive

Do your investments have unrealized gains which you are considering “harvesting”? Or are you currently contemplating the sale of appreciated real estate or business interests?

Nebraska recently became the latest state to expressly prohibit residential contractors from rebating any portion of an insurance deductible. In this regard, the Insured Homeowners Protection Act states, in part, that the contractor may not pay an insured, or a person directly or indirectly associated with the real estate, any form of compensation, except for an item of nominal value. What's this mean for you?

In the course of administering an employee benefit plan, lots of decisions must be made. Whether those decisions are being made by an individual or a committee, the process for making the decision must be prudent.

Let’s say you sue a defendant in state court for injunctive relief. The defendant then files bankruptcy and receives a discharge. Then, the state court says you can proceed, despite the discharge. And so you do. Then, the defendant seeks contempt sanctions in bankruptcy court for a discharge injunction violation. Can you be sanctioned, if the state court was wrong? Such is the essence of what’s before the Supreme Court in Taggart v. Lorenzen. 

When it comes to the federal Family and Medical Leave Act ("FMLA"), employers have long known that the devil is in the details. At its core, the FMLA requires covered employers to provide leave rights to eligible employees for qualifying reasons.

New Internal Revenue Code Section 1400Z creates qualified opportunity funds (QOFs) and qualified opportunity zones. This program incentivizes the reallocation of capital to
designated low-income census tracts. It presents a remarkable opportunity for taxpayers to defer and reduce capital gain and subsequently exclude the appreciation of qualified opportunity fund interests from income.

You can find a tutorial and a form online for practically everything, so do you really need to hire an attorney to prepare your estate plan? Here are some excuses I’ve heard from people who claim they don’t need an estate plan or think they can handle the preparation of legal documents on their own: We’re not rich . . . My sister knows we want her to raise our kids . . . Aren’t there forms on the internet for that? Have you told yourself the same thing?

Many employers may recall the commotion that ensued when the Obama administration issued a final rule on May 23, 2016 that substantially increased the standard salary level for workers exempt under the executive, administrative, professional, outside sales and computer employees exemption of the federal Fair Labor Standards Act.

Can your business afford to pay thousands of dollars in penalties as a result of a workplace safety investigation? In December of 2018, the U.S. Department of Labor’s Occupational Safety and Health Administration ("OSHA") cited one Nebraska business $78,899 in penalties following an inspection that resulted when an employee suffered a leg laceration.

In a decision issued March 4, 2019, the U.S. Supreme Court has ruled that a party must obtain a copyright registration – rather than merely place an application on file with the U.S. Copyright Office – in order to sue for copyright infringement. This ruling affects companies seeking to protect creative material put into any form, such as video, audio, print, or digital.

On February 15, 2019, the Federal Trade Commission (“FTC”) announced the annual changes to the Hart-Scott-Rodino Antitrust Improvement Act of 1976 (the “HSR Act”) pre-merger notification thresholds (see attached Federal Register publication). The revised thresholds were published in the March 4, 2019 edition of the Federal Register and will become effective April 3, 2019.

Partnership income and distribution allocations between individual partners is one area in which Section 199A should be considered when designing partner allocations. With tax returns for the 2018 tax year being prepared, now may be a good time for individuals involved in a partnership to reevaluate their current partnership income allocation methods in light of the potential benefits of the new Section 199A deduction.

Today, 80 percent of all 94 bankruptcy court districts have a local mediation rule of some type with more on the way. Of those 80 percent, however, a dozen or so bankruptcy court districts must rely on the local mediation rules of their district courts. 

Under the proposed regulations that were published in October 2018, however, for owners of a pass-through entity who have an eligible capital gain pass-through to them the 180-day reinvestment window generally begins on the last day of the pass-through entity’s tax year.

An increasing problem facing employers is the threat of class action lawsuits related to their use of background checks. In these lawsuits, plaintiffs claim that employers are violating a federal statute called the Fair Credit Reporting Act (the “FCRA”), which regulates, among other things, an employer’s use of background checks performed by third party providers. 

Approximately seven months have passed since the United States Supreme Court’s decision in South Dakota vs. Wayfair, which held that a retailer without a physical presence in a state, but with a “significant quantity” of sales in that state, had sufficient nexus to take on the burden of sales tax collection. These seven months have provided more questions than answers about the short- and long- term impact of the decision on remote sellers and those that do business with them.

Most people understand trust arrangements are beneficial for their minor children. Until kids are financially mature, parents and grandparents do not want their children and grandchildren to receive an outright inheritance. However, more clients are beginning to realize the benefits of lifetime trust arrangements, and in particular, “beneficiary controlled trusts”.

The fiscal year 2020 H-1B lottery season is upon us, and uncertainty remains regarding the proposed regulation to tweak the H-1B lottery program. Notwithstanding the uncertainty, employers interested in filing H-1B lottery petitions are encouraged to start the process now.

For tax years beginning after December 31, 2017, a new centralized partnership audit regime generally applies to businesses taxed as partnerships for federal income tax purposes, and, with the exception of eligible partnerships that elect out of the centralized partnership audit regime, any imputed underpayments will be assessed at the partnership level rather than at the partner level.

Employer-sponsored parties are a time for employers to show appreciation for their employees and are important to employee morale. However, employer-sponsored parties can also be problematic for employers, especially where alcohol is served.

Plan sponsors and administrators have been eagerly awaiting IRS guidance on changes to the hardship withdrawal distribution rules made by the Bipartisan Budget Act of 2018 (the "Act"), which are effective for plan years beginning on or after January 1, 2019.

On the eve of the Fiscal Year 2020 H-1B lottery season which opens for filing on April 1, 2019, the Department of Homeland Security has published proposed regulations to tweak the H-1B lottery program. The proposed regulations would require companies seeking to file H-1B cap-subject petitions (a/k/a H-1B lottery petitions) to complete an electronic registration with U.S. Citizenship and Immigration Services (“USCIS”) during a 14-day period leading up to the historical filing date (typically, April 1st each year).

What exactly is an estate plan? Webster defines “estate” as all of the things that a person owns and “plan” as something that a person intends to do. Accordingly, your estate plan sets forth your intentional decisions about the ultimate disposition of your property.

Following the judgement made in 2016, in a lawsuit filed by Aetna against a group of San Francisco Bay Area surgery centers, questions still arise from health care providers and suppliers around the country as to whether (and if so, how) they can offset the out-of-pocket cost-sharing amounts that patients have to pay for health services.

Mike Linder, Koley Jessen’s Environmental Practice leader, presented at an environmental conference in Washington D.C. on current trends in state and federal environmental regulations. Recent trends in environmental regulation include fundamental changes in direction in a number of areas. The presentation focused on those areas that will have the most impact on US business. 

The Department of Treasury and Internal Revenue Service issued initial proposed regulations, a Revenue Ruling, and draft Form 8996 and instructions for investments in qualified opportunity funds (“QOF”). What does this mean for you?

New Internal Revenue Code Section 1400Z creates qualified opportunity funds and qualified opportunity zones. This program is designed to incentivize the reallocation of capital to designated low-income census tracts. It presents a potentially remarkable opportunity for taxpayers to defer and reduce capital gain and subsequently exclude the appreciation of a qualified opportunity fund investment from income.

As CMS enhances its IT capabilities, providers must be vigilant about keeping their Medicare enrollment records up-to-date or else risk suspension or loss of their billing privileges.

As the number of states that have legalized the use of medical marijuana expands, employers are having to grapple with how they will address the questions that are likely to arise from the potential medical and/or recreational drug use by their employees.

A recent case issued by the Nebraska Supreme Court has estate planning and family law attorneys talking. The case is Stephens v. Stephens, 297 Neb. 188, 899 N.W.2d 582 (2017), and the result of this case may very well be more litigation to resolve the questions it is bound to raise. The solution to avoid being the person paying the legal fees associated with that litigation is a well-drafted premarital agreement.

Carve-out transactions create a path for sellers to discard businesses least aligned with core business strategies while also generating additional capital for the seller. Carve-out transactions invoke unique challenges compared to standard M&A transactions. This article contains a list of key issues that private equity firms should consider when planning and executing a carve-out transaction and navigating the post-closing exit and integration process.

As employers are well aware, premium processing is an optional service available for certain employment-based benefit requests which guarantees a response (not necessarily an approval) from U.S. Citizenship and Immigration Services (“USCIS”) within 15 calendar days of USCIS’s receipt of a petition.

On August 8, 2018, U.S. Immigration and Customs Enforcement (“ICE”) raided 11 agricultural businesses and executed 17 criminal arrest warrants for business owners

and managers charged with an alleged criminal conspiracy to exploit unauthorized workers for profit, fraud, wire fraud, and money laundering in Northern and Central Nebraska.

On August 10, 2018, Massachusetts Governor Charlie Baker signed "The Massachusetts Noncompetition Agreement Act" (the "Act") into law. The Act imposes a number of new constraints on Massachusetts employers seeking to enter into non-compete agreements with their employees.

For companies that have used the H-2B nonimmigrant visa program (the “H-2B Program”) over the last several years, it is understood that the demand for H-2B visas has skyrocketed. This unprecedented level of growth in demand resulted in the imposition of a lottery system for awarding visas for the second half of the 2018 fiscal year as well as 15,000 extra H-2B nonimmigrant visas being made available for the second year in a row. All signs point toward continued interest in the H-2B Program for the 2019 fiscal year. Employers interested in using the H-2B Program for the second half of the 2019 fiscal year should begin working through the necessary application steps within the next couple of months.

Employers are facing workplace retention challenges with increasing regularity. Whether this is the result of a shift in generational norms or a strong economy, employees seem to be more mobile than ever before.

It is increasingly common to see service animals in places of public accommodation, on public transit, and even in the workplace. However, the rising trend of animals in the workplace has given rise to potential conflicts and liability risks for employers.

A Grantor Retained Annuity Trust is a planning tool that you may use to transfer assets to your beneficiaries with little, or possibly no, wealth transfer tax costs. The primary benefit of a GRAT is to freeze the value of the property transferred to the trust, so that the future appreciation is transferred in a tax-efficient manner. The best assets to use with this technique are those that you expect to appreciate significantly in value, such as securities, business interests, or real estate.

Attorney Generals from Nebraska, South Dakota, Missouri, Oklahoma, Texas, Arkansas, and Louisiana collectively filed an amicus brief in an Eighth Circuit Court of Appeals case, Horton v. Midwest Geriatric Mgmt., LLC, requesting that the Eighth Circuit refrain from interpreting Title VII of the Civil Rights Act of 1964 (“Title VII”) to protect sexual orientation discrimination, as the Seventh and Second Circuits have done.

Last month, Senators Elizabeth Warren (D-Massachusetts) and Cory Gardner (R-Colorado) proposed highly anticipated bipartisan legislation that would allow individual states to determine their own approaches to marijuana within their borders.

This article briefly discusses four new laws that took effect on July 1, 2018. 

The Tax Cuts and Jobs Act was signed into law on December 22, 2017, doubling the amount a taxpayer may leave to his or her beneficiaries without paying the federal estate tax. However, this is one of the individual tax changes in the new law which “sunset” on December 31, 2025.

The Supreme Court announced its ruling today in the biggest sales tax case in 26 years. The ruling affects remote and online shopping by removing a limitation on a state’s ability to enforce its collection and remittance statutes against retailers who do not have a physical presence in the state.

The “Tax Cuts and Jobs Act” (the “Act”)[1] amended Section 168(k) of the Internal Revenue Code to allow taxpayers to immediately depreciate or expense 100% of the cost of new and acquired qualified property[2] placed in service between September 27, 2017 and January 1, 2023.[3] In addition to increasing “bonus depreciation” from 50% to 100%, the Act makes “acquired property” eligible for immediate expensing.

Transactions for the purchase and sale of businesses are rarely all cash deals. No matter the transaction structure, the use of financing to consummate the purchase creates a new dimension and layers of complexity requiring additional scrutiny and analysis by a discerning seller (or its principals). This article highlights some of the key considerations in such instances.

Consistent with Fiscal Year (“FY”) 2017, the Secretaries of Labor and Homeland Security have announced that up to an additional 15,000 H-2B visas are available for FY 2018 on a first-come, first-served basis for those businesses that attest, under penalty of perjury, that they are likely to suffer irreparable harm, i.e., suffer a permanent and severe financial loss, if they do not receive all of the workers under the cap increase.

The Supreme Court’s Epic decision undoubtedly favors employers who currently have, or who in the future may have, a mandatory arbitration program. However, despite what some media outlets and commentators might say in the wake of the Epic decision, employers should carefully consider a number of factors before deciding to roll out such a program. 

The U.S. Citizenship and Immigration Services (“USCIS”) has announced that it completed data entry for all Fiscal Year 2019 H-1B cap-subject petitions selected in the lottery and now will begin returning all H-1B cap-subject petitions that were not selected in the lottery.

Is your ERISA plan bonded or insured? Is there a difference? Why does it matter? This article addresses a compliance requirement that is often misunderstood–the fidelity bond requirement of ERISA and its relationship to fiduciary liability insurance.

Price maintenance is an important part of many companies’ strategies, especially those attempting to promote and brand themselves as a producer of high quality goods. While there are methods to impose certain resale prices, organizations have determined that enforcing MAP policies is an effective way to reinforce a company brand at a lower risk than attempting to navigate the current legal landscape of RPM agreements. However, MAP policies still require careful drafting, and a thorough understanding of the practical restraints it may be imposing, as each organization’s circumstances are different.