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Seasons’ Greetings & Happy 2023!

This is the time of year when season’s greetings, holiday and new year’s wishes, regardless of religion, culture, ethnic background or heritage, fills the air. We shop for gifts, send cards (digitally, of course, these days), attend parties, dinners and festive gatherings. Oh, and we gain the 10 pounds that we resolve to lose every new year.

Despite the roller coaster pandemic warnings that again seem to be popping up, many of us, albeit slowly, are once again trying to get back to a new ‘normal,’ venturing to get together with family, friends, loved ones and colleagues.  Starting to travel again, perhaps taking that deferred and much needed vacation or simply taking a break from work or school or the anxiety of the last few years.

Looking back at 2022, it would be nice to say this pandemic is behind us, but just a few days ago I heard a new word – “tridemic” – which I’m sure will make it into the mainstream vocabulary faster than the spread of any virus.  COVID, Flu and RSV cases are increasing and new alarms about variants are once again threatening to overwhelm our health care systems.  At best, more anxiety. At worst, more tragic losses and overworked health care professionals.

At the same time, hardly a week (or sometimes a day) goes by where we don’t hear of another tragedy – a shooting at a mall, a school, a store, a workplace, a playground or a street corner.  Innocent bystanders or commuters subjected to random and often violent attacks.  There are still too many homeless, abused, under-served people in despair and distress. In many parts of the world, the holiday season and new year means bitterly cold weather and for far too many, lack of food or clothing or access to basic health care.

War and suffering, displaced human beings, innocent battered and often shattered lives.  There are still too many places in the world where there is no peace. Where instead of worrying about getting ahead in the workplace or being successful in business or striving to make sure children are getting an education and families are well nourished, they are concerned about stray bullets or brutal repercussions for expressing the wrong opinions. Where tolerance, understanding and compassion are absent. In this age of the Internet, we often too easily believe the myth that we live in a borderless world. It’s only borderless for those who speak, work and live in a free society.  For others, the borders, and living life within them, are very real.

I am also pretty tired of politics – especially partisan politics, no longer measured by honest, but well-meaning disagreement. It seems to have become malicious and mean-spirited. What if there was a requirement that every elected official be prohibited from remaining a member of or being endorsed by any political party, allowed to only accept donations of $10 or less and only once from each person or business in the geographic region they represent. If we are lucky, it would make it more difficult for ‘independent’ elected officials to reach a consensus on self-serving laws. Instead of voting along ‘party lines,’ it might make it more likely that the laws that do make it through are meaningful to greater numbers of citizens! Oh well, I can dream, right?

In case you think all is lost, as we head into 2023, let’s turn to what’s right with the world.  Once again, it’s been a year in which we have witnessed heroic efforts from our health care workers, first responders, emergency search and rescue personnel, as well as our finest and our bravest – not just in our nation, but around the world. So many dedicated, selfless people across the diverse fabric of our communities – communities that transcend borders. People from nations around the globe coming to the aid of those in need – in places they have never been, helping people they don’t know.

Ordinary people performing extraordinary feats of kindness, tirelessly giving of themselves for long, sometimes thankless hours to save lives, feed the hungry, shelter the homeless, provide clothing and rebuild damaged houses and give comfort to so many in need. A woman and her family rescuing a helpless and lost elderly man stranded in a snowstorm, a police officer helping a stray deer stuck in a fence, neighbors providing clothes and food and shelter to strangers whose homes and lives have been shattered by tornadoes. These folks don’t make headlines but if look around, you can find everyday examples of the best in us. They are an inspiration to me, reminding me of what we should and can be if we just take the time to look around and try, not just this time of year, but throughout the year.

As this year draws to a close, once again I would like to express my gratitude and appreciation to all of you – people with whom I’ve worked, readers of my silly trivia contests or learned quotes and those who glance at my legal insights designed to provoke your thoughts that I post once in a while. I am thankful for the relationships, old and new. Those that have endured, those that have strengthened and those that have surprised me and sometimes, those I’ve lost.  Each of you have helped enrich my life, personally and professionally and I am grateful.

Every year, as we move closer to a new year, I find myself at a loss for words that can adequately express my appreciation, so as I always do, I’ll just say, “thank you” and trust you will understand all that is behind those two simple words.

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Season’s Greetings

This is the time of year when season’s greetings, holiday and new year’s wishes, regardless of religion, culture, ethnic background or heritage, usually fills the air.  In past years, we have spent lots of time and attention on shopping for gifts, sending cards, attending or hosting parties, dinners and gaining the 10 pounds we resolve to lose every new year.  Some join a swelling tide of well-wishers, holiday revelers, frosty noses, red cheeks and smiling faces. We traditionally gather together with family, friends, loved ones and colleagues –  often planning travel and vacations and taking a break from work and school.

This year, much like last year, but unlike any others, we continue to face challenges unthinkable and unimaginable less than two years ago. We have and continue to suffer tragic losses, we continue to confront anxiety and fear, we continue to pray for our most vulnerable. Many were often helpless to be near loved ones, unable to hold their hands or be there during moments when it mattered most. This has also been a year in which natural disasters and catastrophic events have contributed to the despair, forcing us to confront tragic loss of life and devastation to homes and property.

This past year, adding to the raging pandemic is our growing frustration and often a sense of helplessness – it seems each time we think we are turning the corner, we feel outwitted by a tiny organism – a virus known as COVID-19. We argue over mask mandates and social distancing, whether to vaccinate or not to vaccinate and it sometimes feels like we are on different sides. The differences aren’t trivial and yes, they are most often very real. But they aren’t what really matters.

Once again, I prefer to focus on what is best in all of us, rather than what we argue about. Another year in which we witnessed heroic self-sacrifices from our health care workers, first responders, emergency search and rescue personnel, as well as our finest and our bravest – not just in our nation, but around the world.  So many dedicated, selfless people across the diverse fabric of our communities –  communities that have transcended borders. People from across nations, from around the globe, coming to the aid of those in need –  in places they have never been, helping people they don’t know.

Ordinary people performing extraordinary feats of kindness, tirelessly giving of themselves for long, sometimes thankless hours to save lives, feed the hungry, shelter the homeless, provide clothing and rebuild damaged houses and give comfort to so many in need.  Let’s also not forget those medical researchers, clinicians and volunteers who are still engineering medical miracles and who continued to work tirelessly to prevent this virus from outwitting us.  While we never know what the future holds, nor what “normal” might look like in the months and years ahead, we can change the way we handle and deal with it – together.

I know the news media spends more time reporting how these difficult times have brought out the worst in some of us. But quietly and usually without fanfare, you can see more examples of how these adversities are bringing out the best in us – just stop and look around you. They are my inspiration to try harder to live up to that ideal, rather than any headlines.

So not surprisingly, this time of year my thoughts turn gratefully to those people and relationships who have helped to enrich my life, personally and professionally and to those who have helped make this world better. There really aren’t words to adequately express my appreciation, so I’ll just say “thank you” and trust you will understand all that is behind those two simple words.

Wishing all of you, your families, friends and loved ones a meaningful holiday season and a wonderful new year filled with health, happiness, prosperity and peace!

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Portugal’s Parliament Protects Remote Workers

Last Friday, stimulated by the realities of working during this COVID-19 pandemic and the concern over unequal access to technology, the Portuguese Parliament (formally, the  Assembleia da República or in English, the Assembly of the Republic), passed new amendments to Portugal”s labor laws intended to protect Portugal’s remote workforce.

In brief, the new laws (which apply to companies with ten or more employees) mean that:

  • Employers could face fines if they contact their employees outside work hours;
  • Employers are forbidden from monitoring workers’ productivity while they are working remotely;
  • Employees with children under the age of eight now have an explicit legal right to work at home – no longer requiring management approval; and
  • Employers are required to help defray some of the costs their employees face as a result of working remotely (e.g., Internet connectivity; electricity, gas) and when they do so, the employer can write the reimbursement off as a business expense.

The amendments also made an effort to tackle the isolation and loneliness that employees may feel working from home by expecting employers to make arrangements for in-person meetings at least once every two months.

The Portuguese Republic was one of the first nations to adopt temporary remote working regulations and these are now formally part of the labor laws that apply to the Portuguese workforce.

If you need help or want more information about this or any other posting on Legal Bytes, don’t hesitate to contact me (Joe Rosenbaum) or any of the Rimôn professionals with whom you regularly work.

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US 5th Circuit Court of Appeals Issues Emergency Stay Blocking New COVID-19 Rules

Last Thursday (4 November 2021) we reported on the U.S. DOL’s announcement of new employer COVID-19 vaccine mandates (see US Department of Labor Announces Emergency COVID-19 Employer Requirements .

Yesterday (6 November 2021), a three judge panel of the United States Court of Appeals for the Fifth Circuit, granted an emergency stay prohibiting enforcement of the rules for now, saying they raise “grave statutory and constitutional issues.”   The order, temporarily blocks implementation of the new rules and the Court ordered the U.S. Government to file papers by Monday afternoon in an effort to ensure swift consideration of the request to issue an injunction against the vaccine mandate and corresponding testing requirements under the new rules.

Click here to read the 5th Circuit Court of Appeals Emergency Stay Order (November 6, 2021).

Stay tuned!

 

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US Department of Labor Announces Emergency COVID-19 Employer Requirements

NEWS RELEASE

Today, the United States Department of Labor issued a press release announcing an emergency temporary standard to protect workers from coronavirus.

These requirements are intended to implement the COVID-19 vaccine directive announced by President Biden and will apply to employers with 100 or more employees.

The standards will require companies subject to the rules to ensure that:

  • Each vaccinated employee provides proof (type and date) of vaccination status (e.g., immunization record from a health care provider or pharmacy; CDC Covid-19 vaccination card; immunization records from a governmental authority; or other official documentation);
  • Employees who are not vaccinated must produce a negative COVID-19 test at least weekly and wear a mask (face covering) in the workplace;
  • An employee who is vaccinated but unable to provide documentary proof, must provide the employer with a written, signed and dated statement attesting to the fact they were successfully and properly vaccinated; and
  • Employees are given paid time off in order to obtain a Covid-19 vaccination and, if necessary, sick leave to recover from any side effects.

There are also separate rules requiring every staff member in health facilities that receive Medicare and Medicaid reimbursements to be vaccinated and health workers and federal contractors  have until January 4, 2022 to obtain either their second dose of the Pfizer/BioNTech or Modernavaccine or a single dose of the Johnson & Johnson vaccine.

The new rules do not require employers to provide or pay for tests, unless a collective bargaining agreement that applies to the employer requires them to do so.

The standards were published in the US Federal Register this morning and you can read a copy or download the regulations in PDF form here: COVID-19 Vaccination and Testing; Emergency Temporary Standard.

As always, if you have questions or want more information about this or any other Legal Bytes posting, don’t hesitate to contact me, Joe Rosenbaum, or any of the Rimon lawyers with whom you regularly work.

 

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20 Years Ago on September 10th . . .

On September 10th, 20 years ago, 2,606 people in the New York metropolitan area went to sleep in preparation for their jobs, meetings, interviews or visits to the World Trade Center in the morning.

Another 246 people went to sleep in preparation for their morning flights, most bound for Los Angeles and some heading to San Francisco. That night, another 125 military personnel, contractors and workers went to bed, knowing they had to get to the Pentagon early to get to work the next day.

There were 343 Firefighters of the New York City Fire Department (including a Chaplain and two paramedics) who went to sleep on September 10th, as well as 23 police officers of the New York City Police Department and 37 police officers of the Port Authority of New York and New Jersey Police Department.

There were 8 emergency medical technicians and paramedics from private emergency medical services, 3 New York State Court Officers and 1 Patrolman from the New York Fire Patrol, all of whom went about their normal routine that evening of September 10th, going to bed as they normally would. Some were scheduled for routine morning patrols or shifts at work, while others knew they might be called on to respond to any emergency that might need some extra help.

None of them saw past 10:08 am Eastern time on Sept 11, 2001.

Of the 2,977 people who died in the initial attacks on September 11th, 2,605 were U.S. citizens. There were also 372 non-U.S citizens, from over 90 countries who perished that day. They were from the United Kingdom, the Dominican Republic, India, Greece, South Korea, Canada, Japan, Columbia, Jamaica, Philippines, Mexico, Trinidad and Tobago, Ecuador, Australia, Germany, Italy, Bangladesh, Ireland, Pakistan and Poland.

So tonight before you go to sleep in preparation for your life tomorrow, kiss those you love, hold your children a little tighter, call that friend or relative you figured you can call tomorrow and never take even one moment of your life or the lives of those you hold dear, for granted.

In one single moment life may never be the same.  For those left behind by the nearly 3,000 souls that perished that day, it can never be the same.

It will never be the same for any of us.

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SEC Adds Chinese Government Interference to Required Risk Reporting

Debbie Klis, a Rimon partner based in Washington, DC, has published a post on the Rimon IM Report noting that just yesterday (26 July 2021) a senior SEC official advised that Chinese companies listed on stock exchanges in the United States, must disclose the potential risks associated with the Chinese government interference as part of their normal reporting requirements.

You can read the entire post Chinese Companies Listed on US Exchanges Must Disclose Potential Risk Associated with Potential Government Interference.

You can also learn more about Debbie and her practice here:  Bio: Debbie A. Klis and if you want to obtain more information, feel free to contact Debbie A. Klis directly. Of course you can always contact me, Joe Rosenbaum, or the Rimon Law lawyer with whom you regularly work.

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SCOTUS Reins In FTC Enforcement Powers

Today (April 22, 2021) the U.S. Supreme Court dealt a significant blow to the practice by the Federal Trade Commission (“FTC”) of imposing restitution requirements on violators of the Federal Trade Commission Act (“Act”).

In a unanimous decision written by Justice Stephen G. Breyer, the Court held that §13(b) of the Act was never intended, nor affords the FTC the authority to obtain restitution or require bad actors in the commercial marketplace to disgorge any monies they may have received as a consequence of their bad acts.

Although the Supreme Court agreed the FTC could enforce the Act through its own administrative proceedings under §5 of the Act, it held that the 1970 addition to the Act that authorized the FTC to seek injunctive relief to stop activities prohibited by the Act, did not also authorize a claim for court-ordered monetary relief.

In this particular case, the lower court granted the FTC’s request for a permanent injunction against the defendant for certain deceptive payday lending practices, but also relied on §13(b) of the Act to require the bad actor (defendant) to disgorge and pay US$1.27 billion in restitution. The defendant appealed to the Ninth Circuit Court of Appeals which rejected defendant’s argument that monetary relief is not within the Commission’s authority to enforce the Act.

The U.S. Supreme Court disagreed, holding that nothing in the statute explicitly authorizes the FTC to obtain court-ordered monetary relief under §13(b) and the structure and history of the Act precludes a finding that such relief available to the Commission.  This is a significant holding that clearly limits the FTC’s power to seek court-ordered monetary relief under §13(b) of the Act, from those alleged to be in violation of the Act.

You can read and download a copy of the decision in the case right here AMG Capital Management, LLC, et al., Applicants v. Federal Trade Commission, Certiorari to the United States Court of Appeals for the Ninth Circuit, No. 19-508 (Argued January 13, 2021; Decided April 22, 2021).

As always, if you want to know more about the information in this posting or if you have any questions, contact me, Joe Rosenbaum, or any of the lawyers at Rimon Law with whom you regularly work.

 

 

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“Family Office”? What’s In a Name

The Implosion Heard Around the (Financial Markets) World

What Can We Expect from the Regulators?

– Robin Powers, Partner, Rimon, P.C.

Archegos Capital Management’s collapse last week, and the resulting losses for several global banks, has and will impact financial markets for the foreseeable future. Regulatory efforts will likely focus on the ever-expanding shadow banking sector and shed light on its transparency (or lack thereof) and the risks. Shadow banking is a blanket term to describe financial activities that take place among non-bank financial institutions outside the scope of federal regulators and generally is defined to include family offices. *

Scrutiny of nonbanks was already a priority for Treasury Secretary Janet Yellen after last year’s Treasury market turmoil surrounding hedge funds, dislocations in the repurchase agreement market in 2019, and of course, the GameStop story earlier this year.

The current regulatory examination follows on the heels of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) (commonly referred to as Dodd-Frank) which overhauled financial regulation in the aftermath of the 2009 financial crisis. Under the Dodd-Frank legislation, family offices won a special carve-out from Congress that allows them to avoid SEC registration if they serve a single family and don’t give investment advice. Family offices made the case to Congress at the time that they only make conservative investments to preserve family wealth and they do not try to beat the markets. And so, despite managing around $10 billion, Archegos is not directly regulated by the SEC because it manages Hwang’s wealth as a single-family office.

CFTC Commissioner Dan Berkovitz said, “The collapse of Archegos Capital Management and the billions of dollars in losses to investors and other market participants is a vivid demonstration of the havoc that errant large investment vehicles called ‘family offices’ can wreak on our financial markets.” He added, “A ‘family office’ has nothing to do with ordinary families. Rather, it is an investment vehicle used by centimillionaires and billionaires to grow their wealth, reduce their taxes, and plan their estates.”

On March 31st U.S. Treasury Secretary Janet L. Yellen led the first meeting of the Financial Stability Oversight Council (FSOC) under the new Biden administration. The FSOC was scheduled to discuss hedge fund activity and analysts expect it also addressed Archegos.
As calls for closer scrutiny of the shadow banking sector grow louder, we can expect policymakers to revisit systemically important financial institution designations for nonbank financial entities. Being designated as systemically important would allow for tougher regulation and oversight from the Federal Reserve.

Want to know more.  You can always contact me, Joe Rosenbaum, about any posting on Legal Bytes, but if you want to know more about the content of this post or you need assistance, feel free to reach out to Robin Powers directly or any of the Rimon professionals with whom you regularly work.

* Over 10,000 family offices globally manage an estimated $5-15 trillion in assets – larger than the entire hedge fund industry. The largest family offices operate like sophisticated investment firms, but they don’t have the same oversight. Unlike hedge funds, family offices do not have to disclose their assets, bank relationships, and other operational information.