Business and Corporate

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A few weeks ago, in a piece entitled “Thorny Roses: Interns and Potential Wage Liability”, I wrote about PBS talk show host, Charlie Rose, and his production company’s $250,000 settlement of a class-action lawsuit brought by a former unpaid intern who claimed minimum-wage violations. On Monday, the assault against unpaid internships continued when a…

“What is in a name? That which we call a rose. By any other name would smell as sweet . . .”

-William Shakespeare, Romeo and Juliet

Roses aside, classifying someone as an “employee” or an “independent contractor” (or rather misclassifying them) can have significant effects. The misclassification of employees as independent contractors is the…

In 2013, business owners with 50 or more full-time employees are expected to be finalizing their plans in response to the employer mandate health care reform, which becomes effective in 2014. Among the choices for business owners will be complying with the employer mandate or planning to pay the penalties for opting out, or executing plans to avoid the employer mandate by trimming their workforce or selling all or a portion of their business before 2014.

Beginning January 1, 2014, the so-called “employer mandate” under the Patient Protection and Affordable Care Act (t he “PPACA”) requires employers with 50 or more full-time equivalent employees (“FTEs”), with “full-time” defined as working at least 30 hours per week, to offer “minimum essential” and “affordable” health insurance to those employees and their dependents. Employers who do not comply will be subject to potentially significant penalties. Employers are not required to provide health care coverage for part-time employees, however, part-time employees must be counted as partial employees when determining whether an employer has 50 FTEs. There will also be various other new requirements under the PPACA effecting employers beginning in 2014 that are beyond the scope of this piece.

Many business owners are considering what they can do to get their FTE count below 50 and avoid the employer mandate and the associated cost increases and regulatory burdens.  Beware, however, that a reduction below this threshold effective January 1, 2014 may not avoid the employer mandate.   The proposed regulations provide that a business could be subject to the employer mandate if during 2013 it averaged 50 or more FTEs.  Employers would have the option to determine their 2013 headcounts by averaging the full 12 months of 2013 or any consecutive six-month period during 2013.  These regulations are in the process of being promulgated and are not yet final.

Additionally, the rules regarding who is an “employer” are not straight forward and contain traps for the unwary, and can render some plans to dodge the employer mandate ineffective. Similarly, having a basic understanding of the rules should alert business owners to seek advice if two or more related businesses may be considered as a single “employer” under the employer mandate rules.
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Continue Reading The Employer Mandate Health Care Reform: A Decision Point For Smaller Companies

We’ve all been there. You sit on the Board of a local non-profit organization as the token lawyer. Or, you volunteered to assist with your house of worship’s finance committee because you have some practice experience with banks. Inevitably the scenario comes up: “You’re a lawyer. Will you help us buy that little piece of…

On August 29, 2012, the Securities and Exchange Commission (the “SEC”) proposed rules to eliminate the prohibition against general solicitation and advertising in certain unregistered securities offerings. These rules are mandated by the Jumpstart Our Business Startups Act (the “JOBS Act”), which was signed into law on April 5, 2012, and is intended to, among…

On August 22, 2012, the Securities and Exchange Commission (the “SEC”) adopted rules (the “Conflict Minerals Rules”) to implement provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act to require certain companies to publicly disclose their use of conflict minerals (gold, tantalum, tin and tungsten) that originated in the Democratic Republic of the Congo or any of its adjoining countries, collectively referred to as the “covered countries.” (1)  These new rules impose additional disclosure obligations on affected companies that use conflict minerals in their products.

The Conflict Minerals Rules apply to a company if it files annual reports with the SEC under the Securities Exchange Act of 1934 (a “Registrant”) and if conflict minerals are “necessary to the functionality or production” of a product manufactured or contracted to be manufactured by the Registrant. If required, a Registrant will file a conflict minerals report on the SEC’s new Form SD (specialized disclosure) by May 31, 2014 (for the 2013 calendar year) and annually on May 31 every year thereafter.

The Conflict Minerals Rules require that all Registrants undertake a three-step analysis to determine whether disclosure is required, and to what extent. Below is a summary for general information regarding the principal requirements of the Conflict Minerals Rules.
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Continue Reading SEC Adopts Rules for Disclosing Use of Conflict Minerals

In its ruling of May 9, 2012, the Sixth Circuit Court of Appeals affirmed the district court’s conclusion that Maker’s Mark Distillery, Inc.’s registered trademark consisting of the signature red dripping wax seal is due protection. The Samuels Family founded the Maker’s Mark Distillery in Loretto, Kentucky, and has been producing whiskey since the Eighteenth Century. Bill Samuels formulated the recipe for the Maker’s Mark bourbon in 1953. His wife, Margie, conceived of the red dripping wax seal. The company has bottled bourbon for commercial sale under the Maker’s Mark name and has used a red dripping wax seal on the bottle since 1958. In 1985, Maker’s Mark registered a trademark for the dripping wax seal component of its trade dress which is described it as a “wax-like coating covering the cap of the bottle and trickling down the neck of the bottle in a freeform irregular pattern.”

In 1995, Jose Cuervo began producing premium tequila entitled “Reserva de la Familia.” The tequila bottle had a wax seal that was straight edged and did not feature drips. However, in 2001, Cuervo began selling its tequila in the United States in bottles with a red dripping wax seal similar to the seal of the Maker’s Mark bottle.
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Continue Reading Whiskey vs. Tequila: Courts find Cuervo’s Seal Infringes Maker’s Mark Red Wax Seal Trademark

Last week, the Community Development Financial Institutions Fund (CDFI) began using updated census tract eligibility data  that is based on the 2006-2010 American Community Survey (ACS).  In 2005, the Census Bureau launched the ACS to replace the long-form census survey.  ACS collects socioeconomic and housing information continuously from a national sample  and provides a five-year…