By A. Thomas DeWoskin
As most commercial attorneys in Missouri know, the previous Missouri statute governing receiverships, which was enacted in 1939 and consisted primarily of one sentence, provided very little guidance to attorneys, judges, or the parties involved. Missouri’s new receivership statute solves that problem. Effective August 28, 2016, and consisting of some 34 sections, the statute now provides guidance regarding the appointment of a receiver, the powers of a receiver, the rights and duties of the parties, and claim and distribution procedures.
A petition to appoint a receiver is now an independent cause of action. It does not need to be merely an “add on” request to some other claim the creditor has against the debtor. Receiverships can be instituted in order to dissolve an entity, enforce a lien, enforce a judgment, and other specific purposes, as well as any other situations in which the court may find a receivership appropriate.
Commencing a receivership is also a useful new way to resolve an ownership dispute or allow a majority shareholder to challenge a misbehaving management without destroying the business.
One of the most important improvements in Missouri’s receivership process is the requirement of notice to debtors. Continue reading »
01/9/17 1:26 PM
Bankruptcy, Business Law | Comment (0) |
Missouri Finally Has a New Statute Governing Receivers and Receiverships
By Laura Gerdes Long
Co-authored by Laura Gerdes Long and Katherine M. Flett
Our ever-evolving technological society is raising new questions about how to reconcile complex health data protection laws with cloud storage. Storage of data in the “cloud” allows users to store, maintain, and manage data remotely on the internet. Its advantages include accessibility of the cloud-stored data from any location via the internet, emergency back-up capacity, and even cost savings. An online search for HIPAA-compliant cloud storage companies reveals that there is no shortage of companies who advertise their “HIPAA-compliant cloud services.” It is important to remember that working with a company who claims their cloud storage “is HIPAA compliant,” does not excuse you from meeting HIPAA requirements. Due diligence is required when selecting such a company and entering into appropriate contractual arrangements with the companies.
The Department of Health and Human Services’ Office for Civil Rights (“OCR”) is responsible for overseeing protection of sensitive health data under the Health Insurance Portability and Accountability Act, as amended (“HIPAA”). OCR issued guidance on October 6, 2016, explaining how to safeguard electronic health information protected by HIPAA in today’s widespread cloud networking environment.
HIPAA applies to “covered entities,” and this article will focus on one such covered entity, the health care provider. Most health care providers do not perform all of their health care functions by themselves and instead often use a range of services offered by others, called “business associates” under HIPAA. Health care providers are permitted to disclose protected health information (“PHI”) to these business associates (“BA”) as long as they obtain satisfactory assurances that the BA will use the information only for the purposes for which it was engaged by the health care provider, will safeguard the information from misuse, and will help the health care provider comply with some of the health care provider’s duties under HIPAA, through the execution of business associate agreements.
Continue reading »
01/9/17 12:14 PM
Health Care, HIPAA, Technology | Comment (0) |
The Intersection of HIPAA and Cloud Storage
By Joseph R. Soraghan
The entrepreneurial press, indeed, even the popular press, is abuzz about regulation crowdfunding (i.e., investment crowdfunding), which became legal on May 16, 2016. And according to some advertisements (primarily by portals, the businesses which will provide the platforms for such crowdfunding), the fund-raising company does not need an attorney, although it would be “nice.” Rather, they say, or imply, small and large businesses with their portals can simply get on the internet to quickly fund their ideas and better the economy at the same time!
Do not believe either the buzz or the advertisements.
Regulation CF is Only a Small (Albeit Very Important) Part of the Applicable Law
Regulation crowdfunding (17 CFR Parts 200, et seq.)(“Reg. CF”) though it is a sea change from (some of) the rules governing entrepreneurial finance, it is not for everyone. Indeed, for most entrepreneurs it should be considered as a last resort only. (See, for example, “Regulation Crowdfunding; Is it Right for You?”, St. Louis Small Business Monthly, June 2016, p. 29.) Secondly, Reg. CF adds to the rules and required steps for legally raising capital , and thus creates even more of a need for the assistance of a lawyer.
That is, the only (albeit very important) change in the law is that now certain “general solicitation” is allowed to promote certain types offerings of securities. But not all general solicitation is allowed. (For example, much information which could be promulgated other than on the platform of a portal such as by newspaper or television is still illegal.)
Virtually all other regulations, statutes, laws – and judicial lore – applicable to raising capital prior to Reg. CF remain applicable and will be applied by securities regulators – and by attorneys for investors who lose money in their crowdfunded investments. The securities regulators, which have authority to prosecute suspicious offerings, have been opposed to and wary of investment crowdfunding since it was required by the JOBS Act in 2012, including Missouri (see, for example, “Kander Issues Investor Alert on Crowdfunding.”)
With the exception of allowing (limited) general solicitation, all the law (and the lore of the regulators and courts which developed since the Securities Act of 1933) still applies to all offerings, including crowdfunded offerings. So do the complicated rules and methods. For example: Continue reading »
12/15/16 8:34 AM
Business Law, Crowdfunding, Emerging Business, Securities Law | Comment (0) |
Investment Crowdfunding Requires an Attorney — with Long Securities Law Experience
By Brian C. Zaldivar
A federal district court in Texas has delayed the enforcement of the Department of Labor’s changes in overtime regulations.
In May 2016, the Department of Labor published a final rule that has caused a fury of scrambling amongst employers, in both the public and private sectors, to review their employee’s salary levels and exempt statuses. This final rule relates back to the Fair Labor Standards Act (“FLSA” or the “Act”), enacted in 1938, which set minimum wages and provided for overtime pay for hours worked above 40 in a week. Section 213(a)(1) of the Act, however, exempted overtime provisions for any employee employed in a bona fide executive, administrative, or professional capacity. This is known today as the “EAP” or “white collar” exemption. The Act also gave the Department of Labor regulatory authority to “define and delimit” those exemptions.
The current regulations concerning the white collar exempt status, promulgated in 2004, required an employee to meet three criteria. First, an employee must be paid on a salary basis (the “salary-basis test”). Second, an employee must be paid at least the minimum salary level established by the regulations (the “salary-level test”). And third, an employee must perform executive, administrative, or professional duties (the “duties test”). See “It’s Almost Time: DOL Overtime Exemption Rules Effective Dec. 1, 2016” for more information on the current regulations.
The final rule, previously scheduled to be enforced December 1, 2016, revamped the white-collar exemption by increasing the salary-level test from $23,660 to $47,476. Any employee earning less than the new amount, but still paid on a salary basis and meeting the duties test, would be entitled to overtime pay at one and one-half times the employee’s regular rate of pay for all hours worked above 40 in a week.
Employers had a few options to become compliment with the final rule and avoid paying overtime, most popular were: Continue reading »
12/2/16 10:40 AM
Business Law, Employment Law | Comment (0) |
Uncertainty Regarding the Department of Labor’s Salary and Overtime Regulations
By Katherine M. Flett
On May 25, 2016, Missouri Senate Bill 608 was passed by the Missouri House and Senate. The Bill adds new requirements to the provision known as the “Health Care Cost and Transparency Act.” Beginning July 1, 2017, the new law requires all licensed health care providers, facilities, and imaging centers to provide an estimate on the cost of a particular health care service or procedure within three business days of a written request from the patient, along with a medical treatment plan from the patient’s health care provider. The estimate must only include those services within the direct control of the health care provider and the amount that will be charged to a patient if all of the charges are paid in full by the patient, without a public or private third-party paying for any portion of the charge. Further, these provisions do not apply to charges for hospital emergency departments.
If health care providers provide publicly available links to the estimated costs or post such costs on a publicly available website, they are not required to provide cost estimates to patients upon written request.
Beginning also July 1, 2017, hospitals will be required to make publicly available the amount that would be charged, without discounts, for each of the 100 most prevalent diagnosis-related groups, as defined by Medicare. Continue reading »
11/29/16 9:43 AM
Health Care | Comment (0) |
New Requirements for Health Care Providers Under Missouri’s Health Care Cost and Transparency Act
By Daniel Willingham
Perhaps the most talked-about subject of the Tax Code right now is the allowance of net operating losses (NOLs). This is no doubt due in large part to the October 1 New York Times article that claims Donald Trump recognized roughly $915 million in losses on his 1995 tax returns, giving rise to his ability to use NOLs to offset taxable income in other years.
Like many stories we hear from the media, the truth about NOLs is much more complex than most pundits have suggested. It is interesting that in all the chatter surrounding NOLs, I have yet to hear a single commentator cite Tax Code Section 172, which does have the heading “Net Operating Loss Deduction.”
Section 172 defines NOLs as the excess of deductions over gross income. Because a deduction by definition reduces taxable income, when a taxpayer’s deductions are greater than his income in a given year, he needs to apply the deductions against income in other tax years. Otherwise, the taxpayer would completely lose a deduction to which he is entitled solely because he did not receive enough income. Continue reading »
10/20/16 11:21 AM
Business Law, Tax | Comment (0) |
Should Donald Trump’s (or Anyone Else’s) Net Operating Losses Really Be Getting So Much Attention?
By Joseph R. Soraghan
Not surprisingly, there is both anecdotal and empirical evidence that time constraints affect behavior generally. It is also, therefore, not surprising that high time pressure (hereinafter “HTP”) probably affects both parties and mediators in mediation.
I recently ran across this question, and found particularly interesting (though not recent) articles by social science researchers which could assist both parties and mediators in their participation in mediation sessions.
In “Time Pressure in Negotiation and Mediation,” a 1993 article, Professors Peter Carnevale, Kathleen O’Connor and Christopher McCusker, then professors in the Department of Psychology, University of Illinois (“Carnevale, et al.”), reviewed the scientific research to that date on HTP in negotiation generally, and mediation in particular, to identify common themes, interesting questions, possible outcomes of differing HTPs and resulting behaviors. It is only possible here to review possible conclusions of (not the methods of) the research and suggest actions to be taken accordingly by mediation participants to benefit their outcomes. [This article was one of 18 chapters in a larger volume entitled “Time Pressure and Stress in Human Judgment and Decision Making” (Plenum Press 1993). The article, as did the other chapters, discussed the effect of HTP in negotiation generally; it then discussed the effects of such pressure on mediation in particular.]
The authors initially noted that the three strategies primarily used in mediation are: Continue reading »
10/7/16 1:13 PM
Litigation, Mediation & Arbitration | Comments Off on Hurry Up! We Have a Plane to Catch! The Effects of Time Pressure on Negotiation and Mediation |
Hurry Up! We Have a Plane to Catch! The Effects of Time Pressure on Negotiation and Mediation
By Laura Gerdes Long
Co-authored by Laura Gerdes Long and Katherine M. Flett
On August 4, 2016, the U.S. Department of Health and Human Services (HHS), Office for Civil Rights (OCR) entered into a settlement agreement with Advocate Health Care Center (Advocate) in which Advocate agreed to pay $5.5 million to settle multiple violations of the Health Insurance Portability and Accountability Act (HIPAA). This is the largest HIPAA settlement against a single entity to date, and according to OCR, is due to the severity of the violations and the length of time that those violations continued.
According to OCR’s press release, OCR began its investigation of Advocate in 2013, after Advocate submitted three breach notification reports relating to three separate instances of breach of unsecured electronic protected health information (ePHI). The combined breaches resulted in unsecured access to over four million patients’ information. Continue reading »
10/3/16 9:47 AM
Health Care, HIPAA | Comments Off on HIPAA Non-Compliance Results in Largest Single-Entity Settlement to Date |
HIPAA Non-Compliance Results in Largest Single-Entity Settlement to Date
By A. Thomas DeWoskin
Restaurants fail for a variety of reasons, from failure to watch costs to failure to develop the right menu to a nearby construction project eliminating most of your on-street parking. If you followed the tips in my previous article, you should have some money to rely on going forward.
If your financial problems are operational or managerial, one of the things you can do at this late stage is to hire a consultant to help you tweak your menu, streamline your operations, or take any of a number of additional steps to bring you back to profitability. This is the time to be humble, rather than arrogant – ask for help! You should also consult with a bankruptcy lawyer at this point. That does not mean you are necessarily going to file bankruptcy, but an attorney knowledgeable in this area can tell you what to expect if different scenarios unfold. Unanswered ‘end-game’ questions will add to your stress and divert you from your primary mission of saving your restaurant. You can learn a lot of useful information for not a lot of money, and gain some peace of mind as well.
A bankruptcy attorney also can help with your current problems. For instance, the attorney can negotiate with the landlord, either to reduce the rent or give back some space. He can negotiate with your lender and your suppliers to negotiate better terms, or a temporary break in your monthly payments. Continue reading »
09/19/16 6:00 AM
Bankruptcy, Business Law, Restaurants & Entertainment | Comments Off on Your Restaurant is Failing – Now What? |
Your Restaurant is Failing – Now What?
By A. Thomas DeWoskin
Failure is a topic most restaurateurs would prefer to avoid when setting up a new venture, when their heads are full with visions of success. However, the restaurant business is tough, and problems can arise due to circumstances both within and outside of your control.
A great time to protect yourself from potentially devastating problems is now, while you are setting up your business and you can plan calmly.
In this post, I will discuss several of the initial legal steps you can take to prepare for a potential failure. In my next post, I will turn to the ramifications of failure and what actions you can take at that time.
First, consult an attorney to prepare your initial legal documents. There are many issues of which you may be unaware, or that you may not know how to resolve. You need to choose an appropriate legal structure and learn about human resource issues. Especially if you have a partner, you will want to deal with buyout issues, succession issues and how to handle deadlocks if multiple owners are unable to reach decisions on major issues. As they say, an ounce of prevention is worth a pound of cure. Continue reading »
09/16/16 7:51 AM
Bankruptcy, Business Law, Restaurants & Entertainment | Comments Off on Opening a Restaurant: Plan for Success – and Failure, Too |
Opening a Restaurant: Plan for Success – and Failure, Too