In Case You Missed It (July 2023)
Bradley Arant Boult Cummings LLP
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Our attorneys regularly publish relevant legal and business articles, by way of our Bradley blog network, to help inform readers and keep you up to date on the latest business trends and issues. This newsletter serves as a space to revisit or discover blog posts you might have missed over the course of the last month.
Budding Trends?cannabis law blog is committed to being at the forefront of developments in the cannabis industry. And while we want to be plainspoken and accessible, we’ll provide a level of sophistication that is rarely found in the cannabis legal market today.
Bradley’s Cannabis Industry team has a deep understanding of the many unique legal and business issues that impact companies – including hemp companies – operating in this sector. We monitor industry trends and legislative developments to provide timely and proactive guidance to clients. Our multidisciplinary team of attorneys also helps businesses successfully identify and mitigate risk and recognize opportunities for sustainable growth. We have substantive experience advising on a wide range of matters, including banking, regulatory compliance, licensing, intellectual property, taxation, corporate transactions and dispute resolution.
A federal court in Louisiana last week refused to enforce a limitation of liability provision included in an extra work order holding that it was trumped by the parties’ subcontract (see?Planet Construction v. Gemini Insurance, 2023 WL 4675387 (W.D. La. July 20, 2023)). Planet Construction was the general contractor hired to construct the?Club 4 Fitness Center?in Lake Charles, Louisiana.?Planet Construction subcontracted the sprinkler system work to S&S Sprinkler Company.?As the work progressed, S&S and Planet Construction executed two work orders for extra work.
Pursuant to the Mississippi Medical Cannabis Act, Mississippi residents can petition the state’s Department of Health to add new serious medical conditions or their treatments to the existing list of conditions that qualify a prospective patient for a medical marijuana card (Miss. Code Ann. § 41-137-17).?Exercising this authority, the DOH recently made it easier for Mississippi residents to petition the agency to add conditions to that list, which currently includes the following conditions and treatments.
The adoption of predictive maintenance (PM), an artificial intelligence (AI) driven strategy that anticipates potential equipment failures using Internet of Things (IoT) sensors, holds immense promise for the construction industry. In a?previous post, we analyzed the current and future opportunities for PM in construction, including avoiding expensive and dangerous equipment failure, increasing worker safety, and streamlining maintenance. However, the use of PM in construction also exposes companies to new risks, including heightened cybersecurity dangers and new legal questions. Below is an in-depth look at the risks posed by PM to the construction sector.
This week, the Department of Homeland Security (DHS) issued a?new final rule?on the Form I-9 process. Under the new rule, the DHS Secretary may authorize alternative Form I-9 documentation examination procedures that do not require an employer to physically examine an employee’s documents in person. These alternative procedures can be authorized as part of a pilot program, or upon a determination by DHS that the procedures offer an equivalent level of security, or as a temporary measure to address a public health emergency or national emergency.
A trio of senators have joined the list of federal lawmakers circulating drafts of federal college name, image, and likeness (NIL) bills. This time, Sens. Richard Blumenthal (D-CT), Jerry Moran (R-KS), and Cory Booker (D-NJ) are joining across party lines to create the College Athlete Protection and Compensation Act. We’ll refer to it as the “CAPC Act” (mainly because nobody wants to read “College Athlete Protection and Compensation Act” over and over).?As discussed in previous posts, NIL rules and laws are currently a unique blend of NCAA rules and varying state laws, which many within the NCAA and college athletics believe to be problematic. While not the first federal NIL bill released or introduced this legislative session, and likely not the last, the CAPC Act signals some bipartisan support for federally standardized NIL regulation.
The construction sector is known for its perennial pursuit of efficiency, quality, and safety. In recent years, one of the tools the sector has started leveraging to achieve these goals is predictive maintenance (PM), specifically the implementation of artificial intelligence (AI) within this practice. This approach, combined with continuous advancements in AI, is revolutionizing the construction industry, promising substantial gains in operational efficiency and cost savings. However, with these developments come an array of cybersecurity threats and complex legal and regulatory challenges that must be addressed. Part 1 of this two-part series discusses the role of PM in the construction sector, and Part 2 goes deeper on the cybersecurity and vulnerabilities relating to PM’s use in the sector.
Word began circulating?a few days ago that tobacco giant Philip Morris has agreed to purchase Israeli cannabis company Syqe Medical for a whopping $650 million if certain future events come to fruition.?While the two companies evidently have some history together, this new deal is reportedly tied to Philip Morris’ interest in acquiring Syqe’s metered-dose, pharmaceutical-grade inhaler that dispenses precise doses of medical cannabis to patients.?
Comedian Sarah Silverman and authors Richard Kadrey and Christopher Golden recently filed class-action lawsuits against?Meta Platforms?(parent company of Facebook) and ChatGPT maker?OpenAI?(backed by Microsoft Corp.) for allegedly using their copyrighted content without authorization to train artificial intelligence (AI) language models. Meta and OpenAI’s AI language models, known as large language models, aim to replicate human conversation and automate tasks. The lawsuits, filed in San Francisco federal court, highlight the legal challenges faced by developers of chat bots who rely on copyrighted material to create realistic responses.
The U.S. Small Business Administration (SBA)?recently issued a rule?that finalizes, without change, the SBA’s November 17, 2022 interim provisions that adjusted monetary-based industry size standards (i.e., receipts-and assets-based) for inflation.
Are PhD students at a private university who also teach courses and grade papers – tasks that are a part of their development but also certainly assist the university – employees who can unionize???The NLRB said yes?for a second time. This trend that allows unionization of employees who were once thought to be only students or athletes is likely to continue, at least under the current NLRB makeup.?
It may be a reflection of summer’s lazy days or a simmering frustration that has built up over time, but it is not uncommon for a majority owner or a minority investor in a private company to decide the time has come to separate from his or her business partners. The majority owner may wish to remove the minority investor from the ownership group, or the investor may have become disenchanted with the owner and want to exit the company.?In either case, there are key issues for business partners to consider before they start down the road toward a business divorce, and this post highlights important issues that will likely arise in this process.
As cyber threats have evolved and expanded, cybersecurity has emerged as a threat to organizations across sectors, and there is more urgency than ever for companies to remain vigilant and prepared. Cybersecurity incidents can come with legal implications and lead to substantial financial losses, and members of the board must increasingly be involved and knowledgeable on cybersecurity to safeguard the company’s reputation – and their own. Tabletop exercises are a potent tool to help identify and address gaps, increase cooperation on cybersecurity goals, and build organizational “muscle memory” to respond to threats.
The U.S. Supreme Court will decide whether the Securities and Exchange Commission’s (SEC) in-house enforcement proceedings violate the Constitution, teeing up a decision that could curtail securities law enforcement and broadly undermine the power of the entire administrative state.
The Supreme Court?agreed?last month to review a Fifth Circuit ruling that struck down the SEC’s administrative proceedings on numerous constitutional grounds. Were the Supreme Court to agree with the Fifth Circuit, its decision would upend administrative courts used by dozens of federal agencies, including the Federal Trade Commission (FTC), Department of Health and Human Services, and Social Security Administration.
If you use non-competes, make sure you complete all the steps to make them enforceable. It may be your practice to ask the employee to sign it and then not sign it yourself. While we seldom see challenges to this practice, the?Alabama Supreme Court?recently took an unusually close look at this issue, clarifying Alabama’s non-compete statute.
We’ve been tossing this idea around in our heads ever since research about microdosing psychedelics entered the mainstream media a few years ago. And the more we think about it, the more we think Congress may allow patient access to psychedelic treatments before it does so for marijuana.
Before you think we’ve been consuming too much of either product, consider this: It now?appears?that a bipartisan majority of the House of Representatives will pass legislation directing the secretary of defense to conduct a clinical study in military treatment facilities using psychedelics. This is an extraordinary development that could revolutionize medical treatments and will certainly draw strong opposition from those who worry that the government is too quick to legalize products once viewed as taboo.
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Letter (ML) titled “Proposed Payment Supplement Partial Claim.” The draft ML proposes use of available partial claims funds to create a new loss mitigation option to assist struggling borrowers.
Generally, a partial claim is an interest-free subordinate loan issued by the United States Department of Housing and Urban Development (HUD) used to pay a portion of a borrower’s past due balance. In certain situations, the remainder of the loan balance is added to the borrower’s principal loan balance, while also extending the loan term for 30 years at a fixed interest rate.
Balancing work and motherhood raises age-old questions for women in virtually every industry. Amongst these are how to navigate work during both pregnancy and the transition back to work after the baby is born, which present specific challenges ranging from physical/medical constraints to privacy and logistical concerns. Those challenges may be amplified for expectant and new mothers in the construction industry, especially for women working in the field.
Two new federal laws address these challenges and may help bridge some of the gaps for mothers in the field. Effective December 29, 2022, the Providing Urgent Maternal Protections for Nursing Mothers Act, also known as the PUMP Act, expanded protections for breastfeeding mothers, and effective June 27, 2023, the Pregnant Workers Fairness Act (PWFA) created new requirements for reasonable accommodations requested by employees who are affected by pregnancy, childbirth, or related medical conditions.
In just a couple of years, “ESG” (environmental, social and governance) has gone from an obscure acronym to a term regularly bandied about in the news, as insurers and financial institutions face legal scrutiny into their investing practices.
A little more than a year ago,?we addressed?the trend of laws that divest state assets from fossil fuels and firearms companies, or, in contrast, prohibit state assets from being managed by firms that engage in divestments. More states have enacted similar rules in the past 12 months, and during that same timespan, a significant number of states passed legislation concerning ESG criteria. As the laws enter the enforcement stage, insurers and financial industries are now being investigated by states. In this article, we’ll provide a high-level recap of important legislation and enforcement actions.
On June 21, 2023, the CFPB released two Data Spotlight reports focused on the Southern states, entitled “Banking and Credit Access in the Southern Region of the U.S.” and “Consumer Finances in Rural Areas of the Southern Region.” This blog focuses on the Consumer Finances Data Spotlight and is a follow-up to a?previous blog post?on the first CFPB publication.
The CFPB’s detailed analysis focuses on the financial health of rural borrowers in the Southern region compared to borrowers from other regions of the country. The report is intended to create a starting point for understanding and addressing the “financial situations, needs and challenges of consumers in rural areas in the southern region.” The Southern region is home to 48 million people and includes Alabama, Arkansas, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Tennessee. The report notes that the Southern region is diverse “with a mix of race, age, and incomes, across both rural and non-rural communities.” However, nearly half of the United States’ Persistent Poverty Counties (PPCs), meaning “any county or county equivalent that has had 20 percent or more of its population living in poverty over the last 30 years,” are located in the Southern region.
Kayla Tran is a co-author of this post and is a Summer Associate at Bradley.
In recent years, the Lone Star State has been vigilant in enacting cybersecurity and data privacy laws to protect individuals and businesses from the disastrous effects of a data breach. Here is a timeline of previous cybersecurity and data privacy legislation enacted by the Texas Legislature.
Consistent with concerns surrounding bias in property valuations, on June 8, 2023, the Consumer Financial Protection Bureau (CFPB), the Federal Deposit Insurance Corporation (FDIC), the Board of Governors of the Federal Reserve System (the “board”), the National Credit Union Administration (NCUA), and the Office of the Comptroller of the Currency (OCC) issued proposed guidance on reconsiderations of value (ROV) for residential real estate valuations.
On June 21, 2023, the CFPB released two Data Spotlight reports focused on the Southern states, entitled “Banking and Credit Access in the Southern Region of the U.S.” and “Consumer Finances in Rural Areas of the Southern Region.” This blog focuses on the Banking and Credit Access Data Spotlight and an upcoming blog will address the second CFPB publication.
The CFPB’s extensive report seeks to identify gaps in banking and credit access in the Southern region of the United States, including Alabama, Arkansas, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Tennessee, which is home to 48 million people. The report notes that the Southern region of the country is both diverse and home to a “significant share of the rural population,” with 23% of people living in a rural county as compared to 14% of people nationwide. The South is unique in that more than a third of its residents are people of color, and 70% of the country’s rural Black population lives in the South. Additional details and characteristics of the region are set forth in Section 1 of the CFPB’s report.
If you’ve ever seen the popular film?Goodfellas, you might have heard of the infamous Racketeer Influenced and Corrupt Organizations Act. It’s usually referred to by its acronym, “RICO,” and was designed to punish a laundry list of criminal conduct such as “gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance.” What’s lesser known is that it also features a civil component: “Any person injured in his business or property by reason of a violation of?[RICO] may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fees.” And when it comes to the enforcement of foreign arbitral awards, the civil remedies section just took on new importance.
Employers in Alabama (along with the rest of the country) have faced headaches the last several years with staffing shortages and shift coverage.?In June, with bipartisan support, the Alabama Legislature passed?House Bill 217?— a first-in-the-nation bill to incentivize hourly employees to work overtime. Beginning January 1, 2024, overtime pay will be exempt from the 5% Alabama income tax.?The bill places no cap on how much overtime pay will be eligible for the exemption, but the governor added an executive amendment requiring employers to report to the Alabama Department of Revenue by January 31, 2024, the aggregate amount of OT paid during 2023 along with the number of full-time, hourly employees who received overtime pay.?The Alabama Department of Revenue is now drafting a form for that purpose. The same reporting obligation will apply to the 2024 calendar year, but by that time it will be tied to the employer’s normal tax reporting of wage withholdings.
In its June 14, 2023, decision in?United States ex rel. Michelle Calderon v. Carrington Mortgage Services, LLC, No. 22-1553, 2023 WL 3991013, (7th Cir. 2023), the Seventh Circuit explained the high bar for relators to prove proximate causation in FCA suits based on alleged false certifications of mortgage loans for Federal Housing Administration (FHA) insurance.?
Michelle Calderon alleged that Carrington Mortgage Services made false representations to the U.S. Department of Housing and Urban Development (HUD) regarding borrowers’ risk levels when submitting applications to have loans covered by federal mortgage insurance. Federal mortgage insurance from the Federal Housing Authority (FHA) provides a path to homeownership to those considered too risky to apply for a traditional mortgage by covering the losses for lenders should the borrower default on the loan. Calderon alleged that Carrington was making misrepresentations in loan applications by providing false information or omitting certain information that would have otherwise made HUD consider these loans too risky or ineligible for federal mortgage insurance.