US President Joe Biden and Vice President Kamala Harris have set an aggressive pace of executive orders, regulatory and legislative changes, and proposed rulemaking to address the ongoing COVID-19 pandemic, a recovering economy, calls for racial justice, existing immigration and foreign policy, and a renewed focus on climate change, among other priorities. To help clients navigate those changes, Morgan Lewis is providing analysis of executive orders, key agency developments, and enacted and proposed regulations.
The US Department of Labor released a final rule reframing how ERISA-regulated fiduciaries can consider environmental, social, and governance factors in retirement plan investment decision making.
The House of Representatives and the Senate took the first steps in response to the collapse of FTX this week. The Senate Agriculture Committee has announced a hearing at which the chair of the Commodity Futures Trading Commission (CFTC) will testify, while the House Financial Services Committee announced its intention to hold bipartisan oversight hearings and to take testimony from companies and individuals involved, including Sam Bankman-Fried, Alameda Research, Binance, FTX, and related entities, among others. Separately, a spokesperson from the US Senate Committee on Banking, Housing, and Urban Affairs stated that the committee would also hold oversight hearings into the FTX bankruptcy.
The US Internal Revenue Service (IRS) recently issued Revenue Procedure 2022-40 to expand the IRS’s determination letter program to include individually designed 403(b) plans. Previously, the IRS’s determination letter program was only available to individually designed 401(a) retirement plans—such as pension plans and 401(k) plans.
The US Securities and Exchange Commission recently released its enforcement statistics for fiscal year 2022. In this LawFlash, we discuss trends and takeaways on what was an active year for the Division of Enforcement.
The US Consumer Product Safety Commission (CPSC) will take a hard and fast approach to product safety in FY23, according to its recently passed operating plan, with enforcement being at the top of its priority list.
The US Securities and Exchange Commission (SEC) on November 2, 2022, by a 3-2 party line vote, proposed amendments (the Proposal) to the liquidity risk management programs rule (Rule 22e-4) under the Investment Company Act of 1940, as amended; and amendments that would require certain funds to implement “swing pricing” and impose a “hard close” on the acceptance of purchase and redemption orders. The SEC described the Proposal as intended to “better prepare open-end funds for stressed conditions,” citing systemic issues associated with the onset of the COVID-19 pandemic, as well as to “mitigate dilution of shareholders’ interests” and “enhance how funds manage their liquidity risks.”
FINRA has announced that it is conducting a targeted examination of broker-dealer practices related to retail communications about “crypto asset” products and services. As part of this sweep, FINRA is asking broker-dealers for all retail communications that were distributed or made available by a broker-dealer or its affiliates on behalf of the broker-dealer that refer or relate to crypto assets or services involving crypto transactions or the holding of cryptocurrency during the period of July 1, 2022, to September 30, 2022.
The HHS Office of Inspector General (OIG) has, for the last several years, been actively auditing hospices regarding their Medicare regulatory and billing compliance, with a national hospice audit in the works. Recently, OIG has notified certain hospices that it is conducting an audit of hospices’ compliance with CARES Act Provider Relief Fund (PRF) requirements and whether the hospices complied with certain terms and conditions and federal requirements related to the use of those PRF grants that were furnished to Medicare providers as part of the COVID-19 relief efforts in 2020 and 2021.
The Centers for Medicare & Medicaid Services (CMS) delayed the publication of the final rule on the use of extrapolation and the application of a fee-for-service adjuster (FFS Adjuster) in risk adjustment data validation (RADV) audits of Medicare Advantage organizations (MAOs). The proposed rule was published on November 1, 2018, more than four years ago. With this latest extension, the final rule deadline is now February 1, 2023.
State attorneys general continue to dominate the national legal and political landscape, with a partisan fervor that sometimes obscures the ongoing investigations and litigation they conduct. One state attorney general race, Arizona, remains undecided as of November 21, 2022—a testament to the narrow split seen in other races across the United States.
The White House Office of Science and Technology recently published The Blueprint for an AI Bill of Rights: Making Automated Systems Work for the American People (the Blueprint), a set of five principles to help guide designers, developers, and deployers of AI in the design, use, and deployment of automated systems with the goal of protecting the public’s rights.
The US Securities and Exchange Commission recently proposed a new rule and rule amendments that, if adopted as proposed, would require registered investment advisers to meet certain requirements when outsourcing certain services or functions.
The US Securities and Exchange Commission (SEC) recently finalized rule and form amendments (Adopted Rules) that require mutual funds and most exchange-traded funds (ETFs) to provide shareholders with streamlined and “visually engaging” shareholder reports. The Adopted Rules include significant changes to both the content and the presentation of information in shareholder reports, summarizing certain key information and moving other information that is currently included in shareholder reports to other SEC filings (e.g., Form N-CSR) and to fund websites. These changes are part of the SEC’s investor experience initiative and its effort to modernize shareholder disclosures and implement layered disclosure approaches.
Based on consistent comments by the US Congress, think tanks, and the US-China Economic and Security Review Commission, several members of Congress proposed legislation to shift jurisdiction for export controls from Commerce to the Defense Technology Security Administration.
Hydrogen will play a key role in addressing the climate crisis, supporting a transition to net zero, and achieving a sustainable clean energy future. As a versatile energy carrier and chemical feedstock, hydrogen offers many advantages and an ability to leverage renewables, nuclear, and fossil fuels with carbon capture and storage. It can also be used as a fuel or feedstock for applications that do not have competitive and efficient clean alternatives.
The US Supreme Court on October 31 debated the legality of race-conscious admission programs used by Harvard University and the University of North Carolina. The decisions in these highly watched cases could have broad consequences for diversity, equity, and inclusion practices in a range of sectors.
The Commodity Futures Trading Commission (CFTC or the Commission) released its enforcement results for fiscal year 2022 on October 20, 2022. The enforcement results detail the 82 enforcement actions the CFTC filed in 2022 and show that orders secured by the Commission imposed more than $2.5 billion in restitution, disgorgement, and civil monetary penalties, either through settlement or litigation.
The US Securities and Exchange Commission (SEC) announced on October 26, 2022, that it has adopted new rules directing national securities exchanges, including the New York Stock Exchange and Nasdaq, to establish listing standards requiring companies to implement ”clawback” policies providing for the recovery of incentive-based compensation in the event of a required accounting restatement, and requiring companies to provide related disclosure.
On October 12, 2022, the US Securities and Exchange Commission (SEC or Commission) adopted amendments (Final Rules) to the electronic recordkeeping requirements applicable to broker-dealers, security-based swap dealers, and major security-based swap participants under the Securities Exchange Act of 1934. The Final Rules are largely consistent with the Proposed Amendments with some modifications.
The Affordable Care Act (ACA) requires non-grandfathered group health plans (and insurers) to provide coverage for certain preventive health services for all adults, women, and children. Preventive services covered under the law must be provided to individuals without cost sharing, i.e., without the requirement to pay a copayment, coinsurance, deductible, or other cost.
In response to confusion regarding the “10-Year Rule” that was added to the required minimum distribution (RMD) rules by the Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act), the US Internal Revenue Service (IRS) has provided relief to defined contribution plan beneficiaries and individual retirement account beneficiaries. In Notice 2022-53, the IRS provides two forms of relief: (1) the proposed RMD regulations, including the application of the 10-Year Rule, if finalized, will not apply earlier than 2023, and (2) the failure to distribute “Specified RMD” payments in 2021 and 2022 will not be treated as a plan qualification failure or trigger the 50% excise tax for the Specified RMDs.
The US Internal Revenue Service has announced that the annual gift tax exclusion is increasing next year due to inflation. The exclusion will be $17,000 per recipient for 2023—the highest exclusion amount ever. Further, the annual amount that one may give to a spouse who is not a US citizen will increase to $175,000 in 2023.
On October 17, 2022, the US Food and Drug Administration (FDA) implemented revisions to two of its compliance policy guides (CPGs). CPGs are intended to advise FDA staff as to the agency's strategy when assessing and enforcing industry compliance. They typically establish FDA policy and interpretation where there is a need for clarification or to address other issues not covered by existing FDA laws, regulations, or guidance.
On October 3, the Office of Inspector General (OIG) of the US Department of Health and Human Services issued a report titled “UPICs Hold Promise to Enhance Program Integrity Across Medicare and Medicaid, But Challenges Remain.” This report detailed OIG’s findings related to the efficacy of the Unified Program Integrity Contractor (UPIC) program.
The US Department of Labor published a Proposed Rule on October 13 seeking to return to applying a test that would make it more difficult for certain workers to qualify as independent contractors.
US President Joseph Biden signed the long-anticipated Executive Order on Enhancing Safeguard for United States Signals Intelligence Activities (EO) on October 7, 2022, providing enhanced protections in an effort to restore the free flow of personal data transfers from Europe to the United States.
The US Department of State has released its November 2022 Visa Bulletin, outlining per-country priority date cutoffs that regulate immigrant visa availability and the flow of adjustment of status application and consular immigrant visa application filings and approvals. Notably, the State Department indicated that it may be necessary to establish a worldwide Final Action Date in the Employment-Based Second Preference (EB-2) category due to increased demand.
The Mental Health Matters Act, passed in the US House of Representatives on September 29, significantly expands the US Department of Labor’s authority to enforce or file civil litigation with respect to mental health parity violations and eliminates discretionary clauses, potentially dismantling the administrative process of the Employee Retirement Income Security Act of 1974.
The Biden-Harris administration’s amendments to the domestic preference requirements in Federal Acquisition Regulation Part 25 become effective on October 25. The new requirements will increase the domestic content threshold for government purchases under the Buy American Act over a several-year period.
The US Department of Commerce published a final rule on September 16 implementing President Joseph Biden’s Proclamation 10414, which declared an emergency with respect to US electricity generation capacity. The final rule permits the importation of select cells or modules without the payment of antidumping and countervailing duty.
US Environmental Protection Agency Administrator Michael Regan announced on September 24 that the agency is establishing a new national office focused on advancing environmental justice and civil rights.
The US Food and Drug Administration issued a proposed rule on September 29 setting forth new criteria for the labeling of food products with the nutrient content claim “healthy” intended to help consumers more easily navigate nutrition labels and to make healthier purchasing decisions.
The Department of Defense issued a memorandum this month refining its guidance on inflation-related economic price adjustments for contractors with existing firm-fixed-price contracts. The updated guidance provides new hope for some contractors that continue to be ravaged by inflated-related cost increases.
A new direction from the UAE Ministry of Justice will allow courts in Dubai to enforce judgments and orders issued by English courts.
The Federal Trade Commission’s September 15 policy statement is the latest in a series of actions signaling the Commission’s continued focus on competition and labor issues in the gig economy. The policy statement—and the FTC’s focus on the gig economy—are likely to have implications for companies that rely on nontraditional workers on a part-time, on-demand basis, regardless of whether those workers are classified as employees.
President Joseph Biden’s recently issued Executive Order provides guidance related to the US national security foreign direct investment review process administered by the Committee on Foreign Investment in the United States. The Executive Order reiterated several common themes, confirmed the scope of various factors identified in the Defense Production Act Section 721 as amended by the Foreign Investment Risk Review Modernization Act of 2018, but also clarified and added insight into the fluid nature of CFIUS’ national security analysis.
The US government took important steps this year to promote a growing hydrogen economy. On August 16, 2022, shortly after the US Department of Energy (DOE) announced a game-changing program to fund $8 billion for the development of regional hydrogen hubs in accordance with the provisions of the Infrastructure Investment and Jobs Act, President Joseph Biden signed the Inflation Reduction Act (IRA) into law, funding approximately $369 billion in new renewable and green energy projects across the country.
The US Environmental Protection Agency (EPA) announced on September 14 that it will require new permit coverage for previously unregulated stormwater discharges in Massachusetts. Specifically, EPA intends to issue general permits covering discharges from commercial, industrial, and institutional (CII) properties with one or more acres of impervious surfaces—hard surfaces like roofs, parking lots, roadways, and areas covered with artificial turf—in the Charles, Neponset, and Mystic River watersheds.
Since President Biden took office, companies have invested nearly $85 billion in the manufacturing of electric vehicles (EVs), batteries, and EV chargers in the United States. This is triple the investment made in domestic EV manufacturing in 2020 and more the 28 times the investment in batteries from two years ago, and the sale of EVs in the United States has tripled in the same period. The Biden-Harris administration is crediting the increase in the development and adoption of EV to an aggressive and holistic funding strategy driven by the White House.
Deputy Attorney General Lisa Monaco on September 15 announced significant updates to the US Department of Justice’s corporate criminal enforcement policies during a speech at New York University Law School. Monaco’s speech coincided with the release of revised policies—the result of a year-long review by senior DOJ officials—intended to give effect to the tougher-on-corporate-crime approach Monaco announced in 2021 and detail incentives for corporations and business entities to voluntarily self-disclose potential wrongdoing.
In the last two weeks, South Carolina’s Senate failed to pass a near-total ban on abortion, California’s legislature passed a law prohibiting California corporations from assisting with certain investigations related to the provision of abortion services, and Oklahoma’s attorney general released guidance on enforcement of the state’s criminal laws prohibiting abortion. In addition, the US Department of Veterans Affairs issued an interim final rule that would permit abortion counseling as part of its medical benefits packages.
US Citizenship and Immigration Services will use the Dates for Filing Chart in October 2022. EB-2 India will retrogress to May 1, 2012. Additionally, Final Action cutoff dates for India EB-2 and EB-3 will retrogress to April 1, 2012.
In a notice of proposed rulemaking (NPRM) published on September 7, 2022, the National Labor Relations Board (NLRB) proposes an initial regulation that would fundamentally change the definition of “joint employer,” replacing the prior legal standards with vastly broader ones and likely sweeping many more business relationships under its coverage.
The US Securities and Exchange Commission recently released its draft Strategic Plan for fiscal years 2022 to 2026 for public comment.
Federal litigation was in the spotlight last week with two major decisions related to the Biden-Harris administration’s Emergency Medical Treatment and Labor Act (EMTALA) guidance on providing abortion services as emergency medical care. There was also a potentially significant federal class action filed against Texas that could test the ability of states to enforce abortion bans extraterritorially. Finally, we continued to see action on state-level litigation and state legislative efforts.
The US Securities and Exchange Commission (SEC) announced on August 25, 2022, that it has adopted new rules to require enhanced pay for performance disclosure that will apply to 2023 proxies for calendar year-end issuers.
Is the COVID-19 pandemic making you feel a bit like Bill Murray in Groundhog Day? Although most parts of life have returned to the "new normal," the federal government remains in a seemingly endless cycle of regulatory uncertainty.
Litigation over the effectiveness of various state abortion laws and state legislative efforts continues as we near two months after the US Supreme Court’s Dobbs ruling. The last of the state trigger laws are set to go into effect on August 25 absent judicial injunctions, and in the last week, there were major legislative developments in South Carolina and important court rulings in North Carolina and South Carolina. This Insight provides updates as of August 23, 2022.
In the September 2022 Visa Bulletin, visa numbers in certain categories may become unavailable mid-month. Other Workers from All Chargeability Areas, Mexico, and the Philippines will retrogress to May 8, 2019. All other Final Action cutoff dates remain unchanged.
The new Inflation Reduction Act includes a $27 billion Greenhouse Gas Reduction Fund that will support competitive grants to national and local “green banks,” which will use the money to invest in projects and innovations intended to reduce or avoid greenhouse gas emissions and other forms of air pollution. While the fund will provide plenty of opportunity to those “green banks,” program applicants should be wary of potential pitfalls that could spark False Claims Act liability.
The Inflation Reduction Act of 2022 reflects a significant step toward meeting the United States’ greenhouse gas emission reduction targets from the Paris Convention and recognizes the indispensable role that nuclear power must play to achieve that commitment. The act contains several key provisions that bolster a broad spectrum of new and existing activities in the nuclear industry.
The Inflation Reduction Act of 2022, signed by US President Joseph Biden on August 16, 2022, includes a new alternative minimum tax for corporations with profits of more than $1 billion.
The Internal Revenue Service (IRS) provided a late summer gift to retirement plan sponsors by extending some year-end plan amendment deadlines. In Notice 2022-33, the IRS extended the remedial amendment deadlines for certain Setting Every Community Up for Retirement Enhancement Act (SECURE Act) provisions (including the MINERS Act provision lowering in-service retirement age for pension plans from age 62 to age 59½) and Coronavirus Aid, Relief, and Economic Security Act (CARES Act) provisions. This extension is particularly helpful for retirement plan sponsors hoping for additional guidance before amending plans to reflect certain SECURE Act changes (for example, the mandatory long-term part-time employee participation provisions and the new age 72 required minimum distribution rules).
The legal landscape around access to abortion services continues to change rapidly in the wake of Dobbs v. Jackson Women’s Health Organization. While a number of states have begun implementing laws that were on the books and are now lawful post-Dobbs, Indiana became the first state to enact a new law restricting access to abortion services since the US Supreme Court decision. In addition, Georgia has begun to implement its law on fetal personhood, and state litigation continues over the enforcement of various abortion bans. This Insight provides updates as of August 10, 2022.
The Setting Every Community Up for Retirement Enhancement Act of 2019 (the SECURE Act) made sweeping changes affecting sponsors of defined contribution and defined benefit plans, retirement plan service providers, and providers of individual retirement accounts and annuities (IRAs). While many believed the SECURE Act went a long way toward expanding retirement savings opportunities and promoting retirement income security, some believed it could have gone further. There are currently several proposed retirement acts pending reconciliation in Congress.
The Inflation Reduction Act of 2022, which US President Joseph Biden signed into law August 16, will dramatically affect a range of climate change, healthcare, prescription drug pricing, and tax matters. With an investment of more than $400 billion in spending, the act is expected to bring in more than $700 billion in revenue.
FERC recently issued a notice of proposed rulemaking (NOPR) to expand the existing duty of candor rule by adding a requirement in 18 CFR Part 1 that any entity communicating with FERC or other specified organizations related to a matter that is subject to FERC’s jurisdiction must submit accurate and factual information and must not submit false or misleading information or omit material information. However, exercising due diligence to prevent the submission of false or inaccurate information would be an affirmative defense to violations of the requirement.
US Senators Maria Cantwell (D-WA) and Catherine Cortez Masto (D-NV) introduced legislation on July 28, 2022, to provide FERC with the authority to temporarily or permanently ban any person from trading or transacting in certain energy markets if that person is found to have manipulated the natural gas or electricity market or willfully or knowingly provided false information regarding those markets. Known as the Energy Consumer Protection Act of 2022, the legislation will be introduced in the House of Representatives by Representative Jan Schakowsky (D-IL).
The Inflation Reduction Act of 2022 proposes significant changes and expansions to the existing federal income tax benefits for renewable energy, fuel production, and other green technologies.
This past week witnessed the first referendum on abortion rights since the US Supreme Court’s decision in Dobbs v. Jackson Women’s Health, along with legislative developments in several states concerning access to abortion. Litigation over the enforcement and validity of state laws barring abortions also continues, highlighted by the federal government’s challenge to Idaho’s pending abortion law. This Insight provides updates in these areas as of August 3, 2022.
US Senators Joe Manchin and Chuck Schumer announced on July 27 an agreement in principle on a legislative proposal, known as the Inflation Reduction Act of 2022, that includes a range of measures addressing consumer energy costs and carbon emissions, Medicare’s ability to negotiate drug prices, an extension of benefits under the Affordable Care Act, and federal deficit reduction—as well as significant federal income tax changes.
Federal and state activity in the initial weeks after the US Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization decision largely focused on litigation and executive and state legislative action designed to protect abortion access. While that activity continues, we are also now seeing the first serious legislative activity aimed at restricting abortion access in light of Dobbs. This Insight provides updates in these areas as of July 27, 2022.
The staff of the US Securities and Exchange Commission division of Investment Management announced that it would allow its October 26, 2017 no-action letter to SIFMA to expire on July 3, 2023—raising questions about the possible investment adviser status of broker-dealers that, after that date, accept cash or “hard dollar” payments for research from investment managers subject to the EU Markets in Financial Instruments Directive II.
In a 2-1 vote, NRC Commissioners have approved a new approach for evaluating where reactors can be sited in the United States, opening the door to siting advanced reactors in more densely populated areas than has been allowed for large, light-water reactors.
The recent increase in use of telehealth as a care modality has been important to patients and providers alike, with significant benefits for public health. However, with the growing mainstream acceptance of virtual care, the US Department of Health and Human Services Office of Inspector General (OIG), the Department of Justice (DOJ), and other federal regulators have likewise increased fraud enforcement in this area, including through the issuance of OIG’s recent Special Fraud Alert (SFA).
Following the US Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, the federal government has issued various guidance to healthcare providers reinforcing federal legal protections or requirements related to abortion services. Healthcare providers must vigilantly follow developments at both the federal and state level to evaluate their compliance strategies in this rapidly evolving regulatory landscape.
The weeks after the US Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization decision have seen an array of federal and state actions on the issue of access to abortion-related services, including new legislation, executive actions, and litigation. This Insight provides updates as of July 19, 2022.
The US Department of Health and Human Services Office of Inspector General released Advisory Opinion No. 22-14 on June 29, highlighting fraud and abuse considerations for provider-sponsored continuing education programs.
The US Securities and Exchange Commission on July 13 proposed amendments to the shareholder proposal rule, which governs the process for including or excluding a shareholder proposal in a company’s proxy statement.
The US Equal Employment Opportunity Commission updated its guidance on employer COVID-19 testing programs on July 12. The update reinforces that the evolving circumstances of the COVID-19 pandemic require an individualized assessment to determine whether testing is lawful in a given scenario.
The US Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization put the onus on states to define laws around access to abortion-related services. As expected, the two largest sources of action following the decision—beyond US President Joe Biden’s July 8 executive order on abortion access—have been state-level litigation challenging abortion restrictions and executive actions in states that support abortion access.
In August 2022, the US Citizenship and Immigration Services will use the Final Action chart. China and India EB-3 Final Action cutoff dates will advance by one month, as will India Other Workers cutoff dates. EB-2 and all other Final Action cutoff dates remain unchanged.
The Centers for Medicare & Medicaid Services on July 7 released its proposed rule for the Medicare physician fee schedule for Calendar Year 2023. Among other updates, the proposed rule contains significant programmatic changes to the Medicare Shared Savings Program.
The Federal Communications Commission’s Affordable Connectivity Program launched earlier this year and has enrolled over 12 million subscribers to date. As required by Congress, the Commission has issued a Notice of Proposed Rulemaking seeking comment on the program data to be collected, the mechanism for collection, and format for data publication.
The federal COVID-19 public health emergency’s (PHE) current expiration date is just one week away—July 14, 2022. While no official extension has been issued by the Biden-Harris administration yet, it is increasingly likely that the PHE will be extended for at least another 90 days. Previously, the federal government had pledged to states that it would announce an end to the PHE at least 60 days before its expiration. That 60-day time frame ended on May 16 with no indication from the US Department of Health and Human Services (HHS) that it was anticipating the end of the PHE.
The IRS pilot program allows a plan sponsor to conduct a self-examination before a full or limited retirement plan audit would be initiated.
The US House of Representatives recently passed HR 7694, the Strengthening Subcontracting for Small Businesses Act of 2022, which aims to amend the Small Business Act to require the federal government to consider prior compliance with a subcontracting plan when evaluating an offeror’s past performance.
Federal antitrust enforcers at the US Department of Justice (DOJ) and Federal Trade Commission (FTC) continue to take an aggressive stance in healthcare. Two recent developments underscore the trend.
Another boost to the growing US offshore wind industry came on June 23, 2022, when the Biden-Harris administration and several cabinet secretaries announced new initiatives, including a partnership with 11 eastern states described as a “first-of-its-kind forum for collaboration between federal and state officials to accelerate offshore wind progress.”
Officials from the US Department of Justice over the past three months have repeatedly referenced the Department’s intention to include chief compliance officer certifications as part of corporate resolutions going forward. This certification first appeared in the Glencore resolution papers, requiring an attestation that the company’s compliance program is “reasonably designed.” A looming question remains on how regulators will define “reasonably designed.”
The US Supreme Court released its opinion in Dobbs v. Jackson Women’s Health on June 24. The decision overturns prior Supreme Court decisions in Roe v. Wade and Planned Parenthood v. Casey, which held that the US Constitution prohibits states from banning abortion or unduly burdening access to abortion services in the initial phases of pregnancy. At least 24 states have laws that can now be enforced barring abortion or imposing conditions beyond those previously permitted by Roe and Casey. The decision may also open the door for further state regulation regarding reproductive rights.
By a 4-1 vote on June 23, 2022, the US Federal Trade Commission (FTC) issued a notice of proposed rulemaking that is squarely aimed at changing the way dealers interact with customers in the automotive financing process, with an ancillary but material impact on both original equipment manufacturer (OEM) affiliated and other finance companies. The proposed rule follows multiple FTC enforcement actions and consent orders over the last two years, particularly the Bronx Honda, Tate Auto, and Napleton cases, which foretold nearly all of the provisions of the proposed rule.
The US Supreme Court’s June 21 order granting certiorari in Polansky v. Executive Health Resources signals the Court’s intention to settle a circuit court split on the procedure and standard by which the government can exercise its dismissal authority under 31 USC § 3730(c)(2)(A) of the False Claims Act in declined qui tam cases.
The US Supreme Court has issued its highly anticipated opinion in Viking River Cruises Inc. v. Moriana, on whether the Federal Arbitration Act (FAA) preempts California law that invalidates contractual waivers in arbitration agreements of the right to assert representative claims under California's Labor Code Private Attorneys General Act of 2004 (PAGA). In a victory for California employers, the Court held that although California’s rule prohibiting a wholesale waiver of PAGA claims is not preempted, individual PAGA claims can be compelled to arbitration, and once compelled, the non-individual PAGA claims brought on behalf of other individuals cannot be maintained and must be dismissed.
A new Morgan Lewis White Paper, Bipartisan Proposal Attempts to Provide Solutions for Comprehensive Regulation of Digital Assets, analyzes the proposed Responsible Financial Innovation Act (RFIA) in the United States from several different angles, including with respect to issues such as key definitions in this emerging space, jurisdiction, ancillary assets (which are not fully decentralized), stablecoin issuance, taxes, disclosures, and money transmission.
In its latest action under its PFAS Roadmap, the US Environmental Protection Agency issued new and updated drinking water health advisories for four PFAS chemicals. These health advisories are an interim step in a larger process of regulation for PFAS at the federal level and arrive at a time of unprecedented state and federal regulatory and legislative action to address PFAS in the environment.
On June 7, 2022, Senators Cynthia Lummis (R-WY) and Kirsten Gillibrand (D-NY) introduced the Responsible Financial Innovation Act (RFIA), a bipartisan effort to develop and provide greater regulatory clarity to the eclectic digital asset industry. Since releasing the text of the bill, Senators Lummis and Gillibrand launched a strong public lobbying campaign, discussing the bill at fundraisers, joint conference panel appearances, and other events as an opportunity for bipartisan cooperation and reassertion of US leadership in the distributed ledger technology fintech and investment space. The RFIA would create a more coherent and consistent regulatory framework for the digital asset industry, and encourage responsible financial innovation, flexibility, transparency, and robust consumer protection.
The Biden-Harris administration recently affirmed its commitment to advancing environmental justice, issuing a sweeping guidance document on May 26, 2022. At first glance, the guidance from the US Environmental Protection Agency (EPA) merely reviews longstanding statutes and executive orders for environmental justice–oriented authority. But a closer reading reveals a subtle shift in EPA’s decision-making.
The Financial Industry Regulatory Authority recently filed two rule proposals—SR-FINRA-2022-011 and SR-FINRA-2022-013—with the US Securities and Exchange Commission and issued Regulatory Notice 22-12 in an effort to expand the TRACE reporting requirements for FINRA member firms in TRACE-eligible securities.
On June 9, the Department of Transportation (DOT), through the Federal Highway Administration (FHWA), proposed mandatory standards concerning the development and operation of publicly available electric vehicle (EV) charging infrastructure in US markets. DOT’s proposal is the first-ever effort of the US government to impose mandatory standards on EV charging infrastructure in an effort to create uniformity and consumer transparency in the EV charging sector. DOT’s proposal is subject to comment and consideration, and a final rule is expected later this year.
As the US Department of Labor (DOL) continues to contemplate the role of environmental, social, and governance (ESG) considerations in ERISA plan investing, ESG issues surrounding retirement plans are cropping up in another way: as a target for proxy vote proposals that seek to require companies to evaluate their ESG commitments in retirement plans.
In a 3-1 vote, the US Securities and Exchange Commission on May 25 proposed amendments to Rule 35d-1 under the Investment Company Act of 1940 (the Names Rule) that, if adopted as proposed, could cause new entrants and existing issuers alike in the registered funds’ space to reevaluate not only the names of their funds, but also the investment policies required under the Names Rule and related prospectus disclosure.
The US Food and Drug Administration (FDA) has issued a proposed rule—“National Standards for the Licensure of Wholesale Drug Distributors and Third-Party Logistics Providers” (Proposed Rule)—pursuant to FDA’s obligations under the Drug Supply Chain Security Act (DSCSA or the Act) that, when finalized, would require all US wholesale drug distributors (WDDs) and third-party logistic providers (3PLs) to be licensed according to a national standard.
Since 2012, the federal government has published voluntary guidance that empowers state governments to create autonomous vehicle (AV) statutory frameworks to allow and/or incentivize autonomous driving technology research and development.
The US Equal Employment Opportunity Commission (EEOC) released guidance on May 12 addressing the application of the Americans with Disabilities Act (ADA) to employer use of algorithms and artificial intelligence (AI) during the hiring process. Produced as part of the Artificial Intelligence and Algorithmic Fairness Initiative launched in October 2021, the guidance reflects the agency’s growing interest in employer use of AI, including machine learning, natural language processing, and other emerging technologies in employment decisions.
In June 2022, the US Citizenship and Immigration Services will use the Final Action chart. India EB-2 Final Action cutoff dates will advance by one year, while all other Final Action cutoff dates remain unchanged.
A lawsuit filed by 17 states challenges California’s authority to implement climate change–related vehicle emission standards and zero-emissions goals, prompting 20 states to seek to intervene in order to defend California’s role in reducing greenhouse gas emissions.
US Citizenship and Immigration Services (USCIS) on May 3 announced a temporary increase—up to 540 days—to the automatic extension period for employment authorization and employment authorization documents (EADs) for certain EAD renewal applicants.
The NRC recently issued its Allegation Program Annual Trends Report, analyzing regional, national, and site-specific allegation trends for calendar year 2021. The report’s top-line numbers show that allegations increased approximately 40% from 2020. The broad-based increase spanned reactor and materials licensees, as well as their vendors.
In late March 2022, the US Internal Revenue Service withdrew regulations proposed in 2019 and issued new proposed regulations under sections 413(c) and (e) of the Internal Revenue Code, which provide for an exception to section 413’s “unified plan rule”—commonly referred to as the “one-bad-apple rule”—for multiple employer and pooled employer plans.
Morgan Lewis annually publishes a summary and analysis of the practices, developments, considerations, and enforcement actions of the US Securities and Exchange Commission (SEC). The following special reports by our securities enforcement and investment management teams highlight expected SEC priorities in 2022 while reviewing significant SEC enforcement matters of the past year.
The 2022 Examination Priorities for the US Securities and Exchange Commission’s Division of Examinations place continued emphasis on resilient compliance programs that are flexible enough to adjust to known variables and capable of adjusting to new issues. We expect that conflicts of interest and disclosure will again be an enforcement focus, while sweeps, investigations, and initiatives in areas such as environmental, social, and governance (ESG); robo-advisory services; cybersecurity; and best execution will likely lead to enforcement actions. Couple these trends with an aggressive rulemaking agenda, and the next several months promise to be full of developments for investment advisers.
After the US Securities and Exchange Commission spent several years focused on “Main Street” retail misconduct that left private funds largely out of the its crosshairs, Chairman Gary Gensler and the Divisions of Enforcement and Examinations are intent on shifting that focus in a way certain to affect hedge and private equity fund managers. As noted in the 2022 Examination Priorities, given the “size, complexity, and significant growth of this market,” private fund advisers will garner growing examinations resources, and that in turn will lead to more enforcement scrutiny in areas such as valuation, fees and expenses, insider trading, and special purpose acquisition company (SPAC) transactions.
The Consumer Financial Protection Bureau (CFPB or Bureau) recently released its Spring Supervisory Highlights summarizing findings from supervisory exams it conducted between July and December 2021.
The Internal Revenue Service (IRS) issued Notice 2022-24 on April 29 to provide the inflation-adjusted amounts for health savings accounts (HSAs) in calendar year 2023.
The NRC staff recently provided the Commission with their annual Reactor Oversight Process (ROP) Self-Assessment for Calendar Year 2021 (SECY-22-0029). These annual self-assessments have been part of the ROP since the ROP was implemented in 2000 and are used by the Commission, the NRC staff, and stakeholders to monitor the performance of the ROP and identify areas for improvement.
To address changing system needs, FERC ordered each Regional Transmission Organization and Independent System Operator (collectively, RTO/ISO) to submit information to the Commission regarding changes to wholesale markets within 180 days.
Last week, FDA issued a draft guidance that outlines the agency’s proposed approach for evaluating the public health importance of food allergens other than the eight major food allergens identified by US law, which are milk, eggs, fish, crustacean shellfish, tree nuts, peanuts, wheat, and soybeans. By law, those allergens must be listed separately from other ingredients on food labels. As discussed in a prior blog post, sesame is set to become the ninth major food allergen on January 1, 2023.
There have been a number of important recent developments, with more on the way, concerning emerging contaminants such as Per- and Polyfluoroalkyl Substances (PFAS) and 1,4-dioxane. It can be hard for companies to discern, respond to, and plan for the practical impact of these developments on their regulatory compliance, environmental cleanups, litigation, and day-to-day business operations.
Partner Levi McAllister and associate Maggie Curran authored an article for POWER magazine on how the Biden-Harris administration is utilizing the Defense Production Act to increase materials needed for electric vehicle batteries.
Fraud stemming from the COVID-19 pandemic continues to be a criminal enforcement priority for the US Department of Justice (DOJ). On April 20, DOJ announced a new round of criminal charges against 21 defendants that stem from over $149 million in allegedly fraudulent billing to federal healthcare programs and pandemic assistance programs. The new cases raise DOJ’s total COVID-19-related enforcement stats to 35 defendants and over $290 million in fraudulent billing across 16 federal districts.
The NRC staff recently released its long-awaited policy paper on Environmental Justice (EJ) reform at the agency (SECY-22-0025, “Systematic Review of How Agency Programs, Policies, and Activities Address Environmental Justice”). The staff’s retrospective review found that current NRC EJ efforts are fully consistent with applicable law. Nevertheless, they provided a series of recommendations and commitments for Commission consideration.
In the May 2022 Visa Bulletin, India EB-2 Final Action dates advance by two months, while China EB-2 Final Action dates remain unchanged.
A bipartisan group of US senators recently proposed legislation intended to broadly address electric vehicle (EV) fleet management, as both the federal government and the private sector continue adopting EV use at an unprecedented rate in the US market.
The US Securities and Exchange Commission proposed rules on March 28 that would require certain market participants to register as broker-dealers or government securities dealers, and potentially be subject to oversight by self-regulatory organizations such as the Financial Industry Regulatory Authority. These proposed rules have the potential to bring a wide array of private funds, digital asset traders, certain exchange traded products, high frequency traders, and other proprietary traders within the definition of the term dealer (or government securities dealer), bringing an additional level of unnecessary costs and regulatory requirements to firms that generally do not have customers.
The US Securities and Exchange Commission recently proposed new rules and amendments relating to initial public offerings by special purpose acquisition companies and to business combinations involving shell companies and private operating companies. While the proposed rules would enhance investor protections, it is possible they could have a cooling effect on the volume of such transactions or materially increase the costs of deal execution.
The US Department of Justice (DOJ) Antitrust Division announced significant guidance updates to its leniency program on April 4, 2022. Under the program, companies that self-report antitrust conspiratorial activity to the government (and then fully cooperate with the government in its investigation) can receive immunity from the significant fines — and criminal sentences — imposed under the antitrust laws and a de-trebling of civil fines after meeting certain requirements.
National Labor Relations Board General Counsel Jennifer Abruzzo issued Memorandum 22-04 on April 7, taking the position that mandatory meetings held by employers addressing Section 7 activity are unlawful—including meetings in response to union organizing—and announced her intention to prosecute employers who hold these meetings during her tenure in office.
Perhaps signaling the increasing likelihood of a permanent telehealth solution for the Medicare program, the Office of Inspector General for the US Department of Health and Human Services (OIG) has established a “Featured Topics” resource page on its website dedicated to telehealth and OIG’s work in evaluating telehealth policies. This telehealth resource page serves as a compendium for all the reports OIG has completed or plans to undertake related to telehealth and virtual care technologies, including several audits and evaluations currently on OIG's 2022 work plan. In addition, the resource page provides a helpful overview of the manner in which telehealth fits into the larger Medicare regulatory framework.
On March 24, FERC granted a public utility’s petition for declaratory order regarding the treatment of a master license agreement for communications equipment under the public utility’s previously approved revenue sharing mechanism (Revenue Sharing Mechanism).
President Biden on March 15 signed into law the Adjustable Interest Rate (LIBOR) Act, which aims to reduce uncertainty regarding the effect of ending LIBOR on existing USD LIBOR transactions, as part of an omnibus spending package.
US President Joseph Biden issued a directive to the secretary of defense on March 31, invoking the Defense Production Act (DPA) to spur the domestic production of critical minerals needed to produce large-capacity batteries for the automotive, emobility, and stationary electricity storage sectors.
Following a period of silence on whether the Americans with Disabilities Act requires websites to be accessible to persons with disabilities, the US Department of Justice released new guidance on March 18 focusing on covered entities’ obligations under Title II (public entities) and Title III (places of public accommodation) of the act. While not explicit, the new guidance suggests a resurgence of the department’s earlier views that all public-facing websites—including websites of web-only businesses—are subject to Title III and must be accessible to persons with disabilities, and sheds light on the standards businesses may use to determine web accessibility.
In an order denying a request to waive filing requirements triggered by changes in ownership of qualifying facility (QF) projects, the Federal Energy Regulatory Commission reiterated the importance of ensuring QF filings, specifically Form 556, are up to date.
Per the Holding Foreign Companies Accountable Act, the US Securities and Exchange Commission has begun identifying public companies that retained audit firms that the Public Company Accounting Oversight Board has determined it cannot inspect completely due to a position taken by the authorities in a foreign jurisdiction.
As part of a long-standing series of joint meetings, FERC and the Nuclear Regulatory Commission (NRC) will be hosting a joint meeting on March 31, 2022. The meeting will address electric system reliability and nuclear plants, and will include presentations.
The Nuclear Regulatory Commission recently issued SRM-SECY-21-0107, in which it approved the NRC Staff’s recommendation to delegate authority to the Atomic Safety and Licensing Board (ASLB) Panel—the independent trial-level adjudicatory body of the NRC—to conduct “mandatory” hearings for certain types of construction permit applications. However, the Commission also noted its intent to conduct such hearings itself in certain first-of-a-kind proceedings.
US President Joseph Biden’s recent executive order outlines the administration’s first take on regulating the digital asset industry, which includes cryptocurrency and non-fungible tokens. The order lays out six policy objectives and calls on federal agencies to produce reports on how these objectives interact with the industry.
The US Securities and Exchange Commission has proposed new rules and amendments to mandate disclosure regarding cybersecurity risk management, strategy, governance, and incident reporting, including amendments to Form 8-K, Form 10-Q and Form 10-K. As proposed, these new rules and amendments require both current reporting and periodic reporting concerning cybersecurity matters.
A group of four US senators introduced a bill on March 16 to ban imports of uranium products from the Russian Federation. If enacted, such a ban could complicate the refueling of existing commercial reactors in the United States that rely on Russian uranium products. A ban also could extend the schedule in the United States for deploying some advanced reactors, because Russia is a key source of the high-assay, low enriched uranium (HALEU) they plan to use. In a related development, Russia is considering a ban on uranium exports to the United States in retaliation for the most recent energy sanctions on Russia.
The Consolidated Appropriations Act of 2022, which was signed March 15, again permits first-dollar coverage for telehealth services without jeopardizing health savings account (HSA) eligibility, effective April 1, 2022, through December 31, 2022.
Cryptocurrency investing has experienced a tidal wave of popularity since the fabled genesis of Bitcoin in 2009. This growth has been fueled by “extreme” investment returns (despite “extreme” volatility) and innovative means of investing in cryptocurrency. As the wave of interest in cryptocurrency investing reaches the shores of 401(k) plans, including interest in cryptocurrency as a plan investment option or through plan brokerage windows, the US Department of Labor (DOL) warns 401(k) plan fiduciaries to exercise “extreme care” before providing plan participants with the opportunity to expose their retirement savings to cryptocurrency.
A regional director of the US National Labor Relations Board recently ordered an election for physicians to vote on whether they want to unionize. The votes showed that a determinative majority of ballots had been cast overwhelmingly in favor of the union—of 43 eligible voters, 29 voted for the union, three voted against, and three ballots were challenged and not counted. On March 15, the National Labor Relations Board certified the union as the bargaining representative.
The Internal Revenue Service (IRS) is temporarily suspending the IRS Prototype Opinion Letter Program for individual retirement accounts and individual retirement annuities (IRAs) effective March 14, 2022. As noted in Announcement 2022-6, the IRS will not be accepting applications for opinion letters on prototype traditional, Roth, and SIMPLE IRAs or SEP (including SARSEP) and SIMPLE IRA plans until further notice.
President Joseph Biden issued Executive Order 14068 on March 11 expanding prohibitions on trade with Russia and announcing new restrictions on Russian imports, exports, and investments—including luxury goods. This executive order, implemented through regulations issued by the Department of Commerce’s Bureau of Industry and Security, directly impacts many retailers, as it effectively restricts US retailers and businesses from suppling any luxury items, as defined by the regulations and the customs tariff codes to Russia. This edition of Morgan Lewis Retail Did You Know? analyzes the executive order—the latest in a series of regulatory actions targeting Russia as a result of the crisis in Ukraine—the Department of Commerce’s implementing regulations under the executive order, and the practical impact both have for retailers.
In a Reuters article, partners Elizabeth Goldberg and Lance Dial and associate Rachel Mann wrote about recent rulemaking from the US Department of Labor (DOL) that may impact how fiduciaries and other stakeholders approach environmental, social, and governance (ESG)-related investments. The DOL’s proposed rule "Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights,” as well as the agency’s request for input on ways climate change may affect the retirement industry, could prompt the DOL to take additional action related to ESG investment.
The White House issued an executive order on March 9 relating to the responsible development of digital assets in the United States. This executive order outlines the first ever whole-of-government approach to both addressing the risks of digital assets and maximizing the potential benefits.
In a move that was telegraphed at the outset of the Biden-Harris administration, the US Environmental Protection Agency announced March 9 that it is reversing a Trump-era decision to revoke California’s authority to set tailpipe emission standards more stringent than those established by the Agency. This action restores California’s role in setting more stringent emission and fuel efficiency standards that, in practice, tend to drive the US market as a whole.
State and local tax authorities are facing the same issues today as they did before the pandemic: determining how to use their arsenal of audit activities, interpreting existing tax laws, and crafting and passing new tax proposals to combat budget deficits and increase tax revenue. The electric vehicle (EV) industry is an area that is ripe for states to try to apply outdated tax laws to a cutting-edge business.
The Centers for Disease Control and Prevention (CDC) announced a new framework on February 25 providing that mask wearing is optional in low- and moderate-risk settings.
After four long years and a series of delays, the US Food and Drug Administration released its proposed rule for amending the Quality System Regulation to be harmonized with ISO 13485:2016. In a somewhat surprising move, the proposed rule eliminates the substance of the Quality System Regulation and incorporates ISO 13485:2016 by “reference.” As a result, the proposed rule retitles 21 C.F.R. Part 820 to “Quality Management System Regulation.”
On February 9, 2022, US Senators Bill Cassidy, M.D. (R-LA) and Tammy Baldwin (D-WI) introduced bipartisan legislation designed to modernize health privacy laws, including the Health Insurance Portability and Accountability Act of 1996 (HIPAA), and account for emerging healthcare technologies not addressed by existing law.
As anyone in the electric vehicle sector is aware, network charging infrastructure is a threshold issue to be addressed in order to get more electric vehicles (EVs) on the roads in US markets.
Cancelled and reissued qualified plan distribution checks, particularly to decedents, should be monitored for payment in light of the Internal Revenue Service’s repeated refusal to repay withholding to payor plans. If a Form 1099-R is filed reporting a distribution that was never received, employers could end up effectively paying twice the withholding amounts.
While the Biden administration and US Congress continue to debate ways to address perceived prescription drug pricing concerns, the Food and Drug Administration (FDA) is taking action. Under its Drug Competition Action Plan (DCAP), administered by the Office of Generic Drugs (OGD), FDA has published approximately 24 guidance documents since 2017, directing industry stakeholders on how to develop, prepare, and submit abbreviated new drug applications (ANDAs), so that generic drugs can obtain timely FDA approval and more quickly reach the market. In January 2022, FDA published three more guidance documents in the DCAP series.
The US Securities and Exchange Commission recently proposed a comprehensive framework of cybersecurity-related rules and amendments for investment advisers and investment companies. Although advisers and funds may have already implemented many of the requirements, some, such as incident reporting, are likely to prove burdensome and make the landscape surrounding cybersecurity risk management and compliance even more complex.
In response to the Russian Federation’s recognition of certain regions of Ukraine as independent states which followed an expansion of nearly 200,000 troops on the Ukrainian border, US President Joseph Biden authorized the imposition of additional sanctions against Russia and indicated that further sanctions were under consideration. This LawFlash summarizes these newly issued sanctions.
The US Department of Labor (DOL) recently announced that it is seeking comment on the impact of climate change on retirement security and what actions, if any, the agency should take to protect retirement savings from such risks.
The US Senate voted on February 15 to confirm Dr. Robert M. Califf as the next commissioner of the US Food and Drug Administration (FDA), a position that has been filled since April 2021 by acting commissioner Dr. Janet Woodcock.
The US Department of Justice’s Criminal Division Fraud Section released its annual Year in Review report on February 15, covering 2021. Despite ongoing aftershocks associated with the global pandemic, this year’s report highlights the Department’s sustained aggressive enforcement efforts against individuals and, to cap off the calendar year, two corporate resolutions—both guilty pleas imposing independent monitors—likely serving as a harbinger for what’s to come in 2022.
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 passed by voice vote in the US Senate on February 10. The US House of Representatives approved the same measure with bipartisan support on February 7. President Joseph Biden has signaled his support for the bill and is expected to sign it into law.
The US Securities and Exchange Commission (SEC) has proposed a sweeping expansion in how it defines securities exchanges to capture digital asset platforms, request-for-quote platforms, indication-of-interest platforms (IOI), and other messaging platforms.
The Infrastructure Investment and Jobs Act (IIJA) is slated to provide unprecedented levels of federal spending toward physical infrastructure, allocating $1.2 trillion not only for funding roads, bridges, and rails, but also for funding projects like high-speed internet, electric grid modernization, and an electric vehicle (EV) charging station network.
Partner Dan Savrin and associate Molly Maidman discussed antitrust law basics and what insurers should know about the increase of state and federal enforcement in PLUS Blog.
In the span of two weeks, the US Securities and Exchange Commission (SEC) has proposed rules that would significantly overhaul the regulation of the private fund industry. Specifically, on January 26, the SEC issued proposed amendments to Form PF reporting requirements for certain private fund managers and, on February 9, proposed new and amended rules under the Investment Advisers Act of 1940 that, if adopted, would impose new SEC and investor reporting requirements on certain private fund advisers.
New York State lifted its mask mandate applicable to businesses on February 10, and the New York State Department of Labor subsequently issued new guidance that the New York HERO Act does not require employers to enforce mask requirements.
FDA announced on February 2 that it would be resuming domestic surveillance inspections across all product types, beginning on February 7, in light of declining COVID-19 rates.
The US Departments of Labor, Health & Human Services, and Treasury issued new frequently asked questions on February 4, 2022, regarding coverage of over-the-counter, at-home COVID-19 tests at no cost sharing (i.e., deductibles, copayments, and coinsurance), prior authorization, or other medical management requirements during the public health emergency.
The US Departments of Labor, Health and Human Services, and Treasury issued their 2022 Report to Congress regarding their enforcement activities under the Mental Health Parity and Addiction Equity Act as required under the Consolidated Appropriations Act of 2021, which mandates that group health plans offering medical/surgical and mental health/substance use disorder coverage that impose non-quantitative treatment limitations on such benefits provide comparative analyses and documentation demonstrating compliance.
The new Civil Cyber-Fraud Initiative of the US Department of Justice’s use of the punitive False Claims Act (FCA) and its whistleblower provisions has some important legal and risk management considerations for the health industry. Because enforcement will initially occur largely through civil investigations applying the FCA in the broadest possible way, healthcare organizations should undertake a priority assessment of their cybersecurity status to ensure that their practices can withstand hacks, whistleblowers, and government scrutiny.
The US Patent and Trademark Office is implementing a pilot program to allow participating applicants to defer responding to subject matter eligibility rejections until the earlier of a final disposition of the application, or a withdrawal or obviation of all other outstanding rejections.
The automotive industry was awash in change in 2021, driven by investment trends, new goals set by the Biden-Harris administration, and international electric vehicle developments. Looking back, 2021 will be viewed as a transformational year for the ways in which automobiles were—and will be—designed, manufactured, powered, sold, and regulated.
In an effort to attract global talent to strengthen the economy, the Biden-Harris administration recently announced several immigration policy expansions geared towards students in Science, Technology, Engineering, and Mathematics (STEM) academic fields. The policy changes also affect nonimmigrant visa categories, such as J-1 exchange visitors and O-1 nonimmigrant visa holders who demonstrate extraordinary ability in STEM academic fields, as well as afford additional provisions for those seeking lawful permanent residency under the National Interest Waiver program.
The Federal Trade Commission announced on January 24 that it will increase the HartScottRodino Act jurisdictional and filing fee thresholds. Any transaction closing on or after February 23, 2022 will be subject to the revised thresholds.
The US Department of Labor (DOL) issued a final regulation (Final Rule) on December 29, 2021, updating the 2021 Form 5500 to reflect certain statutory changes included in the Setting Every Community Up for Retirement Enhancement Act (SECURE Act). The Final Rule focuses primarily on changes to accommodate pooled employer plans (PEPs) and other defined contribution multiple employer plans (MEPs).
The Dates for Filing Chart for February 2022 saw minimal movement. The US Citizenship and Immigration Services continues to use the “Dates for Filing” chart for employment-based adjustment of status.
The HHS Office of Inspector General (OIG) recently announced its Office of Audit Services plans to conduct a nationwide review of hospice eligibility, focusing on those Medicare hospice beneficiaries who haven't had an inpatient hospital stay or an ER visit in certain periods prior to their start of hospice care.
The US Nuclear Regulatory Commission (NRC) issued a final rule in the Federal Register on January 14 updating the maximum amounts of civil monetary penalties it can impose. Reflecting the price challenges in the larger US economy, the maximum civil monetary penalty amounts dramatically increased over the prior year as a result of the rise of inflation.
The US Departments of Labor, Health and Human Services, and the Treasury (collectively, the Departments) on January 10 published much-anticipated FAQs implementing President Joseph Biden’s announcement last month to expand free at-home COVID-19 testing for all Americans during the continued period of public health emergency.
Certain individuals who have only signature authority over non-US financial accounts now have until April 15, 2023 to file the Report of Foreign Bank and Financial Accounts.
On January 5, the Consumer Financial Protection Bureau (CFPB or Bureau) issued a report detailing consumer complaint deficiencies by the national credit reporting agencies (NCRAs). Specifically, the CFPB found that, in 2021, the NCRAs together reported relief in response to less than 2% of covered complaints, down from nearly 25% of covered complaints in 2019. The CFPB noted three fact patterns believed to lead to inaccurate consumer credit reporting and thus potentially the denial of credit or offer of credit on less favorable terms.
As we start 2022, as part of our Spotlight series, we connect with Reece Hirsch, the co-head of Morgan Lewis’s privacy and cybersecurity practice, to discuss the recent policy statement issued by the US Federal Trade Commission regarding the Health Breach Notification Rule and how it applies to health app developers that handle consumers’ sensitive health information. Our Tech & Sourcing @ Morgan Lewis blog also published a summary of the policy statement.
The Internal Revenue Service and the US Treasury Department have issued final regulations providing rules for taxpayers transitioning from interbank offered rates to qualified rates. These regulations provide financial institutions, counterparties, and investors with helpful guidance and clarification of the October 2019 proposed regulations by generally providing that modifications made in accordance with the final regulations will not be considered a taxable event, although certain questions remain unresolved.
The Department of Labor (Department) issued Field Assistance Bulletin No. 2021-03 (FAB) on December 30, 2021, announcing a temporary enforcement policy for group health plan service provider disclosures under ERISA Section 408(b)(2)(B).
On December 10, the NRC staff issued SECY-21-0105 seeking approval from the NRC commissioners to publish a notice of final rule that would officially replace the NRC's sensitive unclassified non-safeguards information (SUNSI) program with a Controlled Unclassified Information (CUI) program. The new rules would appear in 10 CFR Part 2, "Agency Rules of Practice and Procedure," and be consistent with the government-wide rules on CUI in 32 CFR Part 2002.
In recent US immigration developments, the Department of State has authorized consular offices to forgo the in-person interview requirement for some nonimmigrant visa applicants. Further, President Joseph Biden has revoked the travel ban that had been in place for noncitizens traveling as immigrants or nonimmigrants who were physically present in certain African countries.
The US Senate and House of Representatives have both passed HR 6256, the bicameral, bipartisan Uyghur Forced Labor Prevention Act, with the Senate approving the measure by unanimous consent on December 16. The White House has indicated that President Joseph Biden will sign the legislation into law. At that time, parties seeking to import goods into the United States will have 180 days to ensure that their supply chains are not exposed to China’s Xinjiang Uyghur Autonomous Region or, if they are, that the importer can be issued an exception based on yet-to-be-written due diligence, supply chain tracing, and supply chain management provisions.
The US Securities and Exchange Commission (SEC) recently proposed amendments (Amendments) to its rules governing money market funds. The Amendments are intended to incorporate lessons learned from the COVID-19-related market turbulence in March 2020.
On December 17, the NRC published a report to Congress on the continuing need for and any potential modifications to the Price-Anderson Act (PAA). The NRC was required to submit the report, “Public Liability Insurance and Indemnity Requirements for an Evolving Commercial Nuclear Industry,” by the end of 2021.
The US Securities and Exchange Commission has proposed amendments to its rules regarding disclosure about issuer repurchases of its equity securities, often referred to as buybacks, including a new proposed Form SR to be filed with the SEC. As proposed, these new rules prescribe considerably greater disclosure relating to buybacks and, as with the proposed rules on 10b5-1 plans, have been met with strong statements of dissent by certain SEC Commissioners.
The US Securities and Exchange Commission proposed new rules on December 15, 2021, with respect to security-based swaps that, if adopted as proposed, would prohibit fraud and manipulation, require reporting of large security-based swap positions, and protect the chief compliance officer of security-based swap dealers and major security-based swap participants.
The Dates for Filing Chart for January 2022 remains unchanged. The US Citizenship and Immigration Services continues to use the “Dates for Filing” chart for employment-based adjustment of status.
On December 17, 2021, a divided panel of the US Court of Appeals for the Sixth Circuit granted the federal government’s emergency motion to dissolve the US Court of Appeals for the Fifth Circuit’s stay of the Occupational Safety and Health Administration’s Emergency Temporary Standard. With the Sixth Circuit’s ruling, the standard is effective again for the first time since the day after it was published, although for how long remains to be seen.
The US Securities and Exchange Commission proposed amendments to Rule 10b5-1 that would mandate additional disclosure and establish new requirements relating to insider trading. If adopted as proposed, the rule could have substantial impact on the manner in which company executives purchase and sell securities, as well as on issuer repurchases of their securities.
The US government took another step toward further regulation of per- and polyfluoroalkyl substances (PFAS) on December 15 with the US Senate passing the National Defense Authorization Act for Fiscal Year 2022 by a vote of 88-11, sending the legislation to President Joseph Biden’s desk for signature. While the December 7 House-passed version of the bill removed a number of more stringent PFAS-related measures addressing the US Department of Defense’s procurement abilities and compliance with stricter state cleanup standards, the bill still calls for the implementation of important measures relating to the cleanup, disposal, and study of PFAS.
The Cal/OSHA Standards Board on December 16 voted to approve the second readoption of the California COVID-19 Prevention Emergency Temporary Standards (ETS) during its monthly public meeting. The revised ETS will not adopt the federal OSHA ETS or include a mandatory vaccination requirement for employers, but will include stricter requirements for employers than the current version.
Some taxpayers are receiving automatically generated IRS notices of underpayments and penalties with respect to Form W-2 income tax and FICA withholdings, unemployment taxes, and backup withholding, as well as other year-end individual information returns. This LawFlash addresses some of the areas covered by these IRS notices relating to payroll taxes, equity compensation, and various types of information returns—including Forms 1099—and how taxpayers can resolve them.
The US Securities and Exchange Commission’s proposed Rule 10c-1 would create a sweeping new reporting and disclosure regime for participants in the securities lending markets. Among other things, the proposal increases the Financial Industry Regulatory Authority’s ability to look into the activities of non-broker-dealers, including the potential for near-real-time access to a market participant’s entire portfolio holdings of securities.
The US Securities and Exchange Commission’s proposed Rule 10c-1 would create a sweeping new reporting and disclosure regime for participants in the securities lending markets. Among other things, the proposal increases the Financial Industry Regulatory Authority’s ability to look into the activities of non-broker-dealers, including the potential for near-real-time access to a market participant’s entire portfolio holdings of securities.
The US Internal Revenue Service has extended its temporary approval of accepting electronic or digital signatures on certain IRS forms until October 31, 2023, and has expanded the list of forms that may be signed electronically or digitally to include Form 1042, Annual Withholding Tax Return for US Source Income of Foreign Persons.
The US Department of Transportation’s Federal Highway Administration (FHWA) recently issued a notice seeking public comment on two new electric vehicle (EV) programs that will receive funding under the Infrastructure Investment and Jobs Act (IIJA), which was signed into law by President Biden on November 15, 2021.
In Energy Central, partner Daniel Skees and associate Arjun Ramadevanahalli write that the US Department of Energy’s notice of Request for Information seeking public input on energy supply-chain issues and related technologies will be significant to the nation’s efforts at meeting emissions goals—including the licensing and deployment of advanced nuclear reactors.
As a result of the new Civil Cyber-Fraud Initiative, it is more important than ever that companies be prepared to manage legal issues concerning cyberattacks and anticipate and take steps to mitigate potential liability for noncompliance under contractual, statutory, and regulatory standards, including potential investigations and litigation under the civil False Claims Act.
Several years ago, the US government embarked on a project to standardize federal agency programs—including the NRC’s—for managing unclassified-but-sensitive information. At the NRC, this government-wide Controlled Unclassified Information (CUI) program is intended to replace the agency’s Sensitive Unclassified Non-Safeguards Information (SUNSI) program.
This LawFlash summarizes key takeaways from the American Conference Institute’s (ACI’s) 38th International Conference on the Foreign Corrupt Practices Act (FCPA), where top government officials offered insight and clarification on recent policy announcements and other trends in FCPA enforcement. On the heels of the conference, the Biden-Harris administration issued a broad-based set of strategic initiatives for combatting corruption that reiterated themes from the conference and introduced new objectives and plans.
The Federal Register recently published the US Department of Energy’s (DOE) notice of Request for Information (RFI) seeking public input on energy sector supply chains. The RFI requests that stakeholders provide comment on a wide variety of issues concerning supply chains of energy and related technologies.
Many employers are likely to find the rules for repayment of employer-share social security tax deferrals under the Coronavirus, Aid, Relief and Economic Security (CARES) Act to be confusing. Employers may also be surprised to learn that a 10% penalty on the entire deferral is assessed in the case of underpayments and late deposits. Employers should plan to repay deferred amounts timely and be certain to designate the quarter for which each payment is intended.
The US Environmental Protection Agency (EPA) recently issued a proposed rule under the Clean Act intended to reduce emissions of greenhouse gases (GHGs) and air pollutants from crude oil and natural gas operations (production, processing, transmission, and storage segments).
Partners Daniel Skees and Stephen Spina and associate Arjun Ramadevanahalli authored an article for Law360 about the recently passed Infrastructure Investment and Jobs Act.
The IRS recently issued FAQs to address workforce issues and labor shortages resulting from the COVID-19 pandemic. The guidance seems to be in response to well-publicized labor shortages affecting schools and the education industry, although it is not limited to that industry. The FAQs reaffirm prior IRS guidance, but may give comfort to employers who are contemplating rehiring retirees as they try to manage workforce issues “related to” the pandemic.
The Federal Trade Commission recently finalized a long-discussed update to its cybersecurity Safeguards Rule that includes more specific criteria for what financial institutions must implement as part of their information security programs. Among other key changes, many companies are likely to be impacted by an expansion of the rule’s scope to include “finders,” which may allow such businesses (including fintech firms) to avoid the current regulatory burden and confusion of state law requirements.
The fate of the Occupational Safety and Health Administration’s landmark Emergency Temporary Standard on COVID-19 vaccination is in the hands of the Sixth Circuit—for now. In this LawFlash, we walk businesses through the legal challenges to the Emergency Temporary Standard, how they may unfold, and what businesses may wish to do in the interim.
President Joseph Biden signed the Infrastructure Investment and Jobs Act (IIJA) into law on November 15, 2021. The IIJA will provide funding to overhaul the country’s physical infrastructure and will serve to give the nation’s roads and bridges a much-needed facelift, but squirreled away in the legislation are tweaks that will give defined benefit plans a bit of a nip and tuck too. The new law also provides further relief for taxpayers facing filing deadlines after a disaster and updates the list of such disasters to include wildfires.
FINRA recently filed a proposed rule change with the US Securities and Exchange Commission (SEC) on November 12, 2021 that would seek to once again delay the effective date of changes to FINRA Rule 4210 that were previously implemented on December 15, 2016. The amendments were supposed to become effective on January 26, 2022 and the proposed changes would move the effective date to April 26, 2022.
The Internal Revenue Service has announced that the annual gift tax exclusion is increasing next year due to inflation. After four years of being at $15,000, the exclusion will be $16,000 per recipient for 2022—the highest exclusion amount ever. Further, the annual amount that one may give to a spouse who is not a US citizen will increase to $164,000 in 2022.
Before 2020, the IRS had long taken the position that an employee stock ownership plan (ESOP), and any other retirement plan for that matter, must be adopted no later than the end of the first tax year in which the employer wished to claim a deduction for a contribution to the plan. As a reminder, effective December 31, 2019, Section 201 of the SECURE Act extended that deadline from the end of the applicable tax year to the due date, including extensions, of the plan sponsor’s income tax return for the applicable tax year. Accordingly, under the SECURE Act, if a plan is adopted by the extended due date, it will be treated as having been adopted as of the last day of that year.
President Joseph Biden signed the $1.2 trillion Infrastructure Investment and Jobs Act (the Act) on November 15, 2021, which allocates $550 billion in new spending over the next five years to improve US infrastructure, including critical investments in the energy sector. These investments will cover power grid infrastructure, electric vehicles and charging stations, renewable energy, nuclear power, hydropower, and cybersecurity with the goal to strengthen the energy industry, support emission-free power generation, and bolster emerging technologies.
National Labor Relations Board General Counsel Jennifer A. Abruzzo issued a memorandum explaining her view of employers’ bargaining obligations in response to the US Department of Labor Occupational Safety and Health Administration’s Emergency Temporary Standard to Protect Workers from Coronavirus. According to Abruzzo, any issue involving employer discretion is subject to decision bargaining. The Emergency Temporary Standard may also trigger effects bargaining obligations for non-discretionary issues.
The Centers for Medicare & Medicaid Services released its CY 2022 Physician Fee Schedule final rule on November 2 reflecting the Biden-Harris administration’s goal of increasing access to and quality of care and reducing health disparities. The PFS also advances access to new remote therapeutic monitoring codes that expand on existing remote physiologic monitoring codes developed over the last few years.
A settlement has been reached in Shergill v. Mayorkas, a federal lawsuit seeking to compel US Citizenship and Immigration Services to follow its regulations by automatically granting work permit extensions to L-2 and H-4 nonimmigrant visa holders. Under the settlement agreement, the agency has agreed to change its policies regarding employment authorization documents for certain H-4 and L-2 nonimmigrant visa holders.
The Fifth Circuit temporarily stayed the Occupational Health and Safety Administration’s Emergency Temporary Standard on COVID-19, placing it in legal limbo. In addition, state governments continue to take actions related to employer vaccine mandates that merit attention. In the past month, state legislatures in Alabama, Arkansas, Tennessee, West Virginia, and Iowa passed bills purporting to limit the ability of employers to mandate COVID-19 vaccination, and Florida will consider similar measures in a special session starting November 15. Illinois, in contrast, passed an amendment limiting the effect of a statute used by plaintiffs to challenge vaccine mandates.
After long anticipation by US companies and their employees, the US Department of Labor’s Occupational Safety and Health Administration (OSHA) published its 490-page Emergency Temporary Standard (ETS) and preamble on COVID-19 vaccination. The ETS establishes binding requirements on large employers (i.e., those with 100 or more employees) to help protect employees from contracting COVID-19 in the workplace. Covered employees must have received their final dose of a vaccine series by January 4, 2022, or be subject to weekly COVID-19 testing. The ETS contains many other requirements, including implementing a written vaccine policy, verifying and maintaining records of the vaccination status of the workforce, offering paid time off for vaccination, and more. Employers must comply with all ETS provisions by December 5, 2021, with the exception of the January 4 vaccination or testing deadline. This milestone ETS is expected to cover 84 million employees.
US President Joe Biden’s Working Group on Financial Markets (PWG), along with the Federal Deposit Insurance Corporation (FDIC) and the Office of the Comptroller of the Currency (OCC), released a report on the risks and legislative recommendations for stablecoins, recommending that issuers be limited to insured depository institutions.
The US Department of Health and Human Services, Office of Inspector General (OIG) recently transmitted a memorandum to the Center for Medicaid and CHIP Services detailing the findings of the Massachusetts state auditor's report on the commonwealth’s controls around dual-eligible hospice patients and weaknesses related to election statements and potential MassHealth overpayments for curative items and services related to hospice patients that should have been covered by the hospices.
Deputy Attorney General Lisa Monaco described important changes to the Department of Justice’s corporate criminal enforcement policies during her October 28, 2021 keynote address to the ABA’s 36th National Institute on White Collar Crime. Her address outlined the department’s enforcement priorities, new and altered guidance, and issues targeted for further study. In this LawFlash, the Morgan Lewis white collar litigation and government investigations team discusses its most significant points.
US congressional Democrats released the latest version of H.R. 5376—better known as the Build Back Better Act—late last week, hoping to advance a $1.85 trillion spending package after months of deadlock.
The Division of Examinations staff of the US Securities and Exchange Commission (SEC) published a risk alert on October 26, 2021, titled “Observations from Examinations in the Registered Investment Company Initiatives,” which summarized the observations of the staff coming out of a series of examinations from 2018 and 2019 that focused on mutual funds and exchange-traded funds (ETFs) and, specifically, on certain compliance areas that may impact retail investors.
The US Food and Drug Administration (FDA) has finally issued its final rule establishing requirements for the de novo classification process. The de novo process allows FDA to establish new product classifications for low- to moderate-risk medical devices that meet existing device classifications, thereby significantly easing the regulatory authorization pathway. Without establishment of the new product classification, the device would by default be deemed a Class III device and thus require submission of a pre-market approval (PMA) application.
The American Rescue Plan Act (ARPA) provided relief from certain annual notice and funding requirements to multiemployer plans reeling from COVID-19–related investment and experience losses. IRS Notice 2021-57, issued on October 8, 2021, gives plan sponsors a roadmap for electing relief.
US restrictions on international travel will be lifted November 8 for fully vaccinated international visitors and temporary workers, including those from nearly three dozen nations who have been barred from entering the country since the start of the pandemic. US citizens and permanent residents remain subject to current COVID-19 testing requirements.
Partners Elizabeth Goldberg, Julie Stapel, Lance Dial, Michael Richman, and Marla Kreindler, along with law clerk Rachel Mann, authored an article for Law360 on the US Department of Labor’s recent proposed rulemaking on how retirement plans can make investment decisions that consider environmental, social, and governance (ESG) factors.
The Consolidated Appropriations Act of 2021 mandates that employers offering medical/surgical and mental health/substance use disorder coverage provide comparative analyses and any supporting documentation demonstrating compliance with parity requirements to the Employee Benefits Security Administration of the Department of Labor upon request.
The US Department of Labor on October 14 published in the Federal Register a “Notice of Proposed Rulemaking on Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights.” The proposed rule, if adopted in its current form, would be a significant revision of two controversial regulations adopted at the end of the administration of US President Donald Trump that were perceived by some as imposing new hurdles when considering environmental, social and governance (ESG) factors in making fiduciary investment decisions for US retirement plans and investors subject to ERISA.
The US Securities and Exchange Commission (SEC) has adopted amendments that allow for new payment methods for filing fees, including Automated Clearing House (ACH) payments and debit and credit card payments; revise most forms and schedules that require the payment of filing fees so that the information necessary for filing fee calculations is presented in a structured format; and update the rules regarding the allocation of filing fees.
The IRS recently issued guidance on the utility of and weight to be afforded informal “frequently asked questions” (FAQs) published on its website—clarifications that became necessary given the IRS’s heavy reliance on FAQs as the preferred form of guidance throughout COVID-19 in its attempt to swiftly clarify and interpret standards of newly enacted relief programs often administered by the IRS and the US Department of the Treasury.
FDA issued an updated Q&A guidance in September 2021, Microbiological Considerations for Antimicrobial Agents Used in Food Applications: Guidance for Industry (Antimicrobial Agents Guidance), which replaces a guidance previously issued in September 2007 and revised in June 2008.
Partners Elizabeth Goldberg, Michael Richman, Julie Stapel, and Lance Dial, along with associates Rachel Mann and Gena Yoo, authored an article for Practical Guidance on a recent proposed regulation from the US Department of Labor.
National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memorandum stating that, in her prosecutorial view, college athletes are statutory employees under the National Labor Relations Act (NLRA)—affording them all rights and protections under federal labor laws.
Senior attorney Pierce Blue and associate Alana Genderson authored an article for Bloomberg Law discussing how the rollout of COVID-19 booster shots can create potential legal issues for employers implementing vaccine policies.
According to recent guidance from the US Federal Trade Commission (FTC), providers of health apps and connected devices that collect consumers’ health information must comply with the FTC’s Health Breach Notification Rule, 16 CFR Part 318, and therefore are required to notify consumers and others when their health data is breached.
As the Biden-Harris administration, state governments, and utilities prioritize addressing climate change through reduction of carbon emissions, the United States could soon rival Europe in its use of offshore wind turbines, explained partners Ella Foley Gannon and Dan Skees and associate Scott Clausen in an article written for Reuters.
Hinting that the US Department of Labor (DOL) is currently working on guidance related to cryptocurrency, the Acting Assistant Secretary for the DOL’s Employee Benefits Security Administration recently commented that the DOL finds the prospect of cryptocurrency investments in 401(k) plan lineups “troubling.” This may be a sign of DOL focus on the increasing frequency of ERISA plan investments in cryptocurrency vehicles, including funds with cryptocurrency exposures.
The Safer Federal Workforce Task Force issued guidance on September 24 detailing the requirements that covered federal contractors and subcontractors must follow to comply with Executive Order 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors.” Covered contractors and subcontractors have until December 8 to ensure that covered employees—including those working from home—are fully vaccinated or qualify for a medical or religious accommodation.
The Internal Revenue Service (IRS) issued an important reminder of the unique application of the limit under Internal Revenue Code (IRC) Section 415(c) to 403(b) plans on August 20, 2021. The IRS’s “Issue Snapshot” highlighted a rule that has applied for decades, but with which 403(b) plan sponsors and administrators are often not familiar.
Recently proposed tax legislation, if enacted, would fundamentally alter the taxation of exchange traded funds. This LawFlash discusses the potential consequences of such legislation on industry participants, including retail investors.
The Financial Industry Regulatory Authority (FINRA) published a regulatory notice (RN 21-32) on September 14, 2021 requesting comment on its policy relating to the assignment of OTC symbols to unlisted equity securities. FINRA is considering whether it should begin assigning OTC symbols to unlisted equity securities that do not have a valid CUSIP identifier, in the limited circumstance where a broker-dealer demonstrates its best efforts to obtain a CUSIP identifier and provides documentation to identify the security.
The US Federal Trade Commission (FTC) recently voted to withdraw its approval of the Vertical Merger Guidelines (the 2020 VMGs), which, as we covered in the past, the FTC and Department of Justice (DOJ) issued over a year ago on June 30, 2020. The vote on September 15, 2021 to rescind the policy statement broke along party lines, with the three Democratic commissioners—Chair Lina Kahn and Commissioners Rohit Chopra and Rebecca Slaughter—outweighing their two Republican colleagues—Commissioners Noah Joshua Phillips and Christine S. Wilson.
The Democrats of the House of Representatives have released a much-anticipated tax plan that would significantly impact the federal estate and gift tax system. Importantly, the House could still amend this legislation and the Senate is actively working on its own bill. Nevertheless, the time for estate planning is now.
It has become increasingly clear that improving cybersecurity will be a main focus, and important goal, of the Biden-Harris administration.
August 2021 proved to be a busy month for stakeholders in the electric vehicle (EV) sector. Between US President Joseph Biden's August 5 executive order to encourage the development of EVs and $15 billion in funds earmarked for EV support in the Senate-approved infrastructure legislation, the growth outlook for EVs and other zero-emission transportation is strong.
FINRA is proposing to extend the ability of firms to have remote inspections until June 30, 2022. As discussed in the rule filing, FINRA Rule 3110.17 provide firms the option of satisfying their inspection obligations under Rule 3110(c) remotely for calendar years 2020 and 2021, subject to specified conditions. The rule was to automatically sunset on December 31, 2021. FINRA has extended the rule in light of the COVID-19 delta variant, inconsistent vaccination rates, and an uptick in infections. The filing includes a request for immediate effectiveness, with the rule change being operative on January 1, 2022.
The US Department of Health and Human Services (HHS) recently announced that it will make $25.5 billion available in new COVID-19 relief funds to providers through the Health Resources and Services Administration (HRSA). To that end, HRSA will disburse $17 billion in Phase 4 payments remaining from the CARES Act Provider Relief Fund (PRF) to a “broad range of providers” based on lost revenues and expenses between July 1, 2020 and March 31, 2021.
As highlighted previously, three federal banking agencies (the Federal Reserve Board, the Federal Deposit Insurance Corporation, and the Office of the Comptroller of the Currency) recently issued proposed risk management guidance regarding third-party relationships (Proposed Guidance). Among other things, the Proposed Guidance specifies that banking organizations should adopt third-party risk management processes that are commensurate with the identified level of risk and complexity from the third-party relationships, and with the organizational structure of each banking organization.
According to the proposed Nasdaq board diversity and disclosure rules, listed companies must disclose board-level diversity data and will be required to have two diverse directors—or explain why they don’t meet this requirement.
FINRA filed a proposed rule change with the US Securities and Exchange Commission (SEC) on August 26, 2021 to delay the effective date of changes to FINRA Rule 4210 that were previously implemented on December 15, 2016.
How to best address impacts from our rapidly changing climate is an issue that has permeated almost all sectors of the global economy, traversing industries and impacting all. Governments and businesses around the world are taking action to reduce greenhouse gas emissions and adapt to or mitigate anticipated climate change impacts. These initiatives promise to drive emerging market opportunities and public demand to accelerate existing trends toward energy efficiency, jump-start alternative technologies, and prod changes in financing and tax policy.
The American Rescue Plan Act of 2021 (ARPA) provides for a 100% COBRA premium subsidy for up to six months, from April 1, 2021 through September 30, 2021, for Assistance Eligible Individuals (AEIs) as defined under the guidance. Our prior blog posts, DOL Issues ARPA COBRA Subsidy Model Notices and FAQs and IRS Provides Second Round of FAQs on COBRA Subsidies, provide more information about the ARPA COBRA subsidy and the associated notice requirements.
Substantial change is imminent for key labor law issues commonly affecting healthcare entities. Healthcare employers utilize handbooks and rules, implement property access controls, and engage in human resources investigations, for instance. All these areas, and more, are poised for change with the new Biden-Harris administration National Labor Relations Board (NLRB) general counsel memorandum, highlighting a swath of legal issues where the general counsel will litigate test cases to change the law.
Partner Michelle McCarthy and associates Jacob Oksman and Claire Rowland drafted an article for Practical Guidance about changes the IRS made to the Employee Plans Compliance Resolution System.
Newly confirmed National Labor Relations Board General Counsel Jennifer Abruzzo announced her enforcement priorities in a lengthy memorandum released on August 12, 2021. The memorandum requires employers to rethink their policies and practices in a number of key labor law areas, or else be subject to potentially unfair labor practice litigation intended to reverse precedent or change the law.
It’s been a big week for electric vehicles. Between the Biden-Harris administration’s August 5 executive order to encourage the development of electric vehicles (EVs) and $15 billion in funds in the Senate-approved infrastructure legislation, the growth outlook for EVs and other zero-emission transportation is strong.
A bipartisan group of lawmakers in the US House of Representatives’ Judiciary Antitrust Subcommittee recently voted three bills out of committee that target the pharmaceutical industry practices of so-called “reverse payments,” “product hopping,” and “sham” citizen petitioning. Versions of some of these bills had been under consideration by this subcommittee for years, but had not been voted out of committee until now.
As the automotive and mobility industry continues to grow under the watch of a new US presidential administration, it is important for key players to better understand the government agencies charged with enforcing the rules governing the market’s potentially criminal activities and the administration’s existing enforcement priorities. Here we discuss how the Biden-Harris administration’s enforcement priorities are likely to impact the automotive and mobility industry, as well as focus on special purpose acquisition companies (SPACs), possibly the newest frontier for parallel criminal and civil enforcement.
In a move that the Biden-Harris administration is promoting as a partial fulfillment of a campaign promise to cut US greenhouse gas emissions (GHGs) at least in half by 2030, President Joseph Biden signed a new executive order last week setting a goal of 50% of all new passenger cars and light trucks to be zero emissions vehicles by 2030 and building on Environmental Protection Agency (EPA) proposed tailpipe emission standards that are set to begin with the 2023 car model year.
As we get closer to the September 30 expiration date of the COBRA premium subsidy provided under the American Rescue Plan Act (ARPA), the IRS has issued a second set of FAQs in Notice 2021-46 (Notice) to supplement its prior guidance and provide some specific answers to questions that remained unanswered. The first set of IRS FAQs were provided under Notice 2021-31, which we summarized in our previous LawFlash.
US President Joseph Biden signed an executive order on August 5 that underscores his stated commitment to encourage the development and deployment of electric vehicles (EVs) as part of the Biden-Harris administration’s clean energy agenda. The executive order, Strengthening American Leadership in Clean Cars and Trucks, aims to increase the production of zero-emission vehicles by 2030 and directs new pollution and fuel economy standards for light‑, medium-, and heavy-duty vehicles for model years 2027 and later. President Biden’s issuance of the executive order, combined with the EV-related implications of various provisions in the draft infrastructure bill currently pending in Congress, may well serve to facilitate increased deployment of EVs in US markets.
As we described in our August 31, 2020 LawFlash, the US Department of Labor (DOL) issued an Interim Final Rule (Rule) on August 18, 2020 outlining the requirement of the Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act) for employers to provide “lifetime income illustrations” to defined contribution plan (e.g. 401(k), 403(b), etc.) participants. The purpose of the Rule is to provide participants with disclosures that will help them understand how their defined contribution plan accounts may translate into an income stream in retirement.
As we described in our August 31, 2020 LawFlash, the US Department of Labor (DOL) issued an Interim Final Rule (Rule) on August 18, 2020 outlining the requirement of the Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act) for employers to provide “lifetime income illustrations” to defined contribution plan (e.g. 401(k), 403(b), etc.) participants. The purpose of the Rule is to provide participants with disclosures that will help them understand how their defined contribution plan accounts may translate into an income stream in retirement.
On July 16, 2021, the Internal Revenue Service (IRS) released Revenue Procedure 2021-30, which made several important changes to the Employee Plans Compliance Resolution System (EPCRS) and expanded the ability of plan sponsors to correct certain compliance failures under their retirement plans.
The US Department of Labor (DOL) issued Information Letter 06-14-2021 last month to the attorney of a plan participant who requested a copy of an audio recording and transcript of a phone conversation he or she had with the plan’s insurer. The participant was requesting this information in relation to the participant’s denied claim under the plan.
The National Labor Relations Board, in one of its most significant decisions in recent years on “union protest” issues, has substantially eroded the protection given to “neutral” parties when unions erect large inflatable rats and other displays targeting businesses that have no direct involvement in the underlying labor dispute. This ruling will likely promote more widespread tactics directed against such neutral businesses, which will predictably expand the scope of labor disputes beyond the particular employer whose actions gave rise to the dispute.
The Internal Revenue Service (IRS) made important changes to the Employee Plans Compliance Resolution System (EPCRS) in Revenue Procedure 2021-30 that are helpful for plan sponsors as they expand the ability of plan sponsors to self-correct certain operational failures. The IRS also requested comments on Revenue Procedure 2021-30 so there may be more changes to come.
The US Departments of Treasury, Labor, and Health and Human Services (the Departments) along with the Office of Personnel Management (OPM) issued Requirements Related to Surprise Billing; Part I on July 1. This interim final rule (IFR) is the first in a series of regulations implementing the No Surprises Act, which was part of the Consolidated Appropriations Act, 2021 that was signed into law at the end of 2020.
The Pension Benefit Guaranty Corporation has issued an interim final rule implementing the special financial assistance provisions of the American Rescue Plan Act to assist financially troubled multiemployer pension plans.
In recent years, target retirement date funds (TDFs) have become a very popular investment option on participant-directed defined contribution plan investment lineups. But, as discussed in this LawFlash, as TDFs have grown in popularity, there are signs of increasing scrutiny around TDFs used in participant-directed defined contribution ERISA plan investment lineups. This increasing scrutiny is expected to raise new regulatory initiatives generating new questions and may favor increased process review by ERISA plan fiduciaries.
EB-2 China cutoff dates advance by four months, EB-3 India cutoff dates advance by six months, and EB-1 priority date cutoff dates remain “Current” for all classifications.
The US Department of State announced on July 6 that it has extended the validity of previously issued National Interest Exceptions (NIEs), and that going forward, NIEs will be granted for a validity period of one year for multiple entries to the United States.
The still evolving US sanctions (as well as the EU and now also separate UK sanctions) continue to challenge Russia-related business. The sanctions frameworks are complex, changing, and, at times, inconsistent as well as overlapping. Navigating this complex global framework is made even more difficult by the ongoing unpredictable and reactionary geopolitical environment as the Biden Administration gets underway.
Commissioner Annie Caputo has announced her plans to leave the NRC when her term expires next week, on June 30, 2021. This will leave the Commission with the bare minimum number of commissioners needed to conduct business.
In keeping with the Biden-Harris administration’s commitments to strengthen federal regulation of per- and polyfluoroalkyl substances (PFAS), the US Environmental Protection Agency (EPA) announced three actions last week with respect to the agency’s regulation of the use, import, and manufacture of PFAS.
On June 11, 2021, the US Department of the Interior’s (DOI’s) Bureau of Ocean Energy Management (BOEM) issued a proposed sale notice to sell commercial wind energy leases on the Outer Continental Shelf (OCS) in the New York Bight. The New York Bight is an area of shallow waters located between Long Island and the New Jersey coast that is adjacent to the greater metropolitan tristate area, which is home to more than 20 million people. BOEM proposes to offer for sale eight lease areas and to complete the lease sale by holding a public auction.
In a move that is expected to expand the reach of the Clean Water Act, the US Environmental Protection Agency and the Army Corps of Engineers announced their intent to revise the definition of “waters of the United States”—a key threshold for the Clean Water Act’s application.
We repeatedly warned over the past few months (here, here, and here), that officials at the highest levels of the DOL were signaling that the DOL would begin an audit initiative focusing on retirement plan cybersecurity practices. Despite plan fiduciaries having had just a handful of weeks to digest the DOL’s only actionable guidance on cybersecurity and privacy matters, the wait is over. We can confirm that the DOL has begun issuing information and document requests under this new initiative, and the requests are probing and indicate serious inquiry by the DOL.
In a May 27 Federal Register notice, the US Department of Health and Human Services (HHS) announced the reinstatement of the Unapproved Drugs Initiative, the FDA’s compliance policy governing marketed unapproved drugs. The announcement is an abrupt—but not unexpected—reversal from a previously issued controversial decision by the Trump administration’s HHS to end the Unapproved Drugs Initiative in November 2020. The reinstatement means that companies that market unapproved drugs should reassess their risk under FDA’s preexisting enforcement priorities.
The new executive order continues the policy of prohibiting US persons’ transactions in the publicly traded securities of select Chinese companies, but expands the scope to include both Chinese companies that operate or have operated in the defense and related materiel sector and those in the surveillance technology sector of the economy of the People's Republic of China.
US Senators Ron Wyden (D-Ore.), Rand Paul (R-Ky.), and Jeff Merkley (D-Ore.) introduced legislation on May 21 to ensure hemp-derived cannabidiol (CBD) is regulated by the US Food and Drug Administration (FDA) like other ingredients used in dietary supplements, foods, and beverages.
As many of our readers are aware, President Joseph Biden issued an executive order on May 12 to improve the nation’s cybersecurity. While much of the executive order focuses on strengthening the federal government’s networks from cybersecurity threats, “[t]he private sector must adapt to the continuously changing threat environment, ensure its products are built and operate securely, and partner with the Federal Government to foster a more secure cyberspace.”
The scope of commitments by corporations involving their own sustainability efforts around the globe has markedly accelerated this year. About 300 companies have signed on to the RE100 initiative, which brings together businesses committed to 100% renewable electricity. And recently, more than 400 businesses urged the Biden-Harris administration and the United States to set goals of cutting greenhouse gas emissions to at least 50% below 2005 levels by 2030.
US President Joseph Biden issued the Executive Order on Climate-Related Financial Risk on May 20, 2021, directing federal agencies across the US government to take action addressing climate-related financial risk.
The Internal Revenue Service issued Notice 2021-31, providing the much-anticipated guidance plan sponsors, multiemployer plans, and COBRA administrators have been waiting for related to the COBRA subsidy provisions under the American Rescue Plan Act.
Last week, we posted on the guidance issued by the US Department of Labor (DOL) for plan sponsors, plan fiduciaries, recordkeepers, and plan participants on cybersecurity best practices. Last week’s post focused on the guidance provided for hiring a service provider. In this week’s post, we will highlight some the DOL’s cybersecurity program best practices for use by recordkeepers and other service providers responsible for plan-related IT systems and data.
Just over 100 Days into the Biden-Harris administration, the course being charted by the government for automobile emissions and emerging automotive mobility technologies is becoming clearer. It includes retooling the current approach toward emissions regulations, including the Corporate Average Fuel Economy (CAFE) standards and the California Waiver as well as revitalizing the federal government’s sustainability efforts to achieve or facilitate clean and zero emission vehicles for federal, state, local, and tribal government fleets. But with new and existing legal and regulatory pitstops along the way, companies attempting to leverage these developments should consider the updates below before shifting into gear.
In response to the surge in COVID-19 cases in India, the Biden-Harris administration announced on April 30 that the COVID-19-related admission bans currently in place will be expanded to include travelers from India. The ban is currently scheduled to go into effect at 12:01 am EDT on May 4.
The Biden-Harris administration on April 28 introduced the American Families Plan (AFP), a $1.8 trillion legislative framework including provisions to “grow the middle class, expand the benefits of economic growth to all Americans, and leave the United States more competitive.” The AFP would expand access to education, reduce the cost of child care, create a national comprehensive paid family and medical leave program, and extend or make permanent certain tax credits for families with children and low and middle-income households, such as the Child Tax Credit and the Child and Dependent Care Tax Credit.
US President Joseph Biden and Vice President Kamala Harris have consistently framed their policies with what they call the four major “crises” facing the nation: COVID-19, the economy, climate, and inequity.
During the Leaders Summit on Climate, hosted by the Biden-Harris administration on April 22 and 23 in Washington, DC, President Joseph Biden set aggressive goals for reducing greenhouse gas (GHG) emissions in the United States.
The Biden-Harris administration has set its sights on an ambitious environmental policy agenda, focusing on climate change and environmental justice as key initiatives, and intends to implement its agenda through an “all of government” approach. The all-of-government strategy, first deployed in the United Kingdom in the late 1990s, employs a coordinated, multi-department, multi-agency approach to address particularly complex problems.
The pace of regulatory and legislative developments in climate change and renewable energy over the past few years has been dizzying. With a new US presidential administration now focused on energy issues, examples set from forward-thinking states, and recent lessons learned on the importance of grid stability, here are some of the expected federal actions aimed at achieving energy goals in the “new abnormal.”
In the US Securities and Exchange Commission staff’s most recent guidance addressing environmental, social, and governance (ESG) investing, the staff of the Division of Examinations released an April 9 Risk Alert noting observations made during recent examinations of investment advisers and funds (both registered and private) engaged in ESG investing.
The VATM Yearbook 2021 takes an honest look at the current broadband and regulatory situation, analyzes problem areas, and offers solutions on how to achieve what is feasible and how to get there. Clear political perspectives for the post-election period are presented by the general secretaries of the major parties in Germany.
The American Rescue Plan Act 2021, signed into law by President Joseph Biden on March 11, 2021, provides for significant relief to the most troubled multiemployer pension plans. The extent to which such relief also extends to the employers that contribute to those plans is currently an unanswered question, pending further guidance from the Pension Benefit Guaranty Corporation.
As we described in our March 15, 2021 LawFlash, the American Rescue Plan Act of 2021 (ARPA) includes a 100% COBRA premium subsidy for any employee or dependent who is a COBRA qualified beneficiary (or will become one) resulting from an involuntary termination of employment or a reduction of hours (referred to as an Eligible Individual).
The education industry, like many others, saw a fundamental shift in 2020 as remote learning challenged some of the long-held traditions of institutions, educators, and related companies. From federal support of reopening in-person classes to changes in college athletics to overall financial challenges, here are some of the trends we could see defining the industry for the rest of 2021.
The Biden-Harris administration announced its American Jobs Plan, a legislative framework laying out an ambitious $2 trillion investment in physical and human infrastructure, on March 31. The bulk of the proposed spending is directed to rebuild US infrastructure in the form of physical improvements on roads, bridges, airports, and ports, with additional investment and tax credits to support clean energy generation and storage, electric vehicles, and energy efficiency.
Consistent with the Biden-Harris administration’s “whole of government” approach to climate change as announced in its Day 1 and Day 7 executive orders, on March 29 the administration announced a variety of concrete initiatives that executive agencies will be taking to accelerate the development, permitting, and construction of US offshore wind projects and boost the already-growing industry as a whole. In addition to highlighting the importance of offshore wind in lowering carbon emissions and addressing climate change, the announcement emphasized the substantial collateral benefits that the administration expects offshore wind growth will bring, including jobs, investment, and related infrastructure improvements.
The Biden-Harris administration has allowed Presidential Proclamation 10052 (PP 10052) to expire as of March 31. PP 10052, implemented by the previous administration in June 2020, had suspended the issuance of certain nonimmigrant or temporary visas in several categories.
With the recent passage of the COVID-19 stimulus package, President Joseph R. Biden, his administration, and Congress have turned their attention to long-term economic recovery, deficit reduction, and tax reform. Proposals cover a broad range of tax policy issues, from raising the corporate income tax rate to reforming the current international tax regime. This LawFlash summarizes key elements of some of the tax reform proposals that have recently emerged.
Senator Chris Van Hollen (D-MD) introduced a Congressional Review Act (CRA) resolution of disapproval on March 26 that would invalidate the Office of the Comptroller of the Currency’s (OCC’s) true lender final rule.
The OCC, the Federal Reserve Bank, and the FDIC (collectively, the Banking Regulators) announced an interim final rule on March 9 that revises their capital rules to facilitate implementation of the US Treasury Department’s Emergency Capital Investment Program.
The American Rescue Plan Act of 2021 (ARPA) provides $1.9 trillion in relief funding to address the COVID-19 pandemic, support the US economy, and provide relief for impacted Americans. Signed into law by President Joseph R. Biden on March 11, 2021, ARPA includes provisions affecting healthcare providers, who remain on the frontlines of the pandemic as the new law takes effect.
The Consumer Financial Protection Bureau (CFPB or Bureau) issued a Statement of Policy (Statement) on March 8 making it clear that going forward it will exercise its full authority to penalize covered persons found to have engaged in abusive acts or practices, 12 U.S.C. §5536(a)(1)(B), in violation of its core consumer protection authority. In doing so, the Bureau’s acting director rescinded a January 20, 2020, Policy Statement (2020 Statement) issued by a director appointed by former President Donald Trump, in which the Bureau advised, among other things which we have previously discussed, that it would generally not seek civil penalties for “abusive conduct” unless there had been a lack of a good faith effort to comply with the law.
The American Rescue Plan Act of 2021 includes a COBRA premium subsidy and increases the dependent care flexible spending account (DCFSA) limits. While the availability of the COBRA premium subsidy is a requirement, the increase in the DCFSA limit is optional.
The US Department of Labor proposed to eliminate two of the previous administration’s signature rules, the joint employer rule and the independent contractor rule.
Morgan Lewis’s 15th annual 2020 Year in Review and a Look Forward provides a comprehensive overview and analysis of key 2020 US Securities and Exchange Commission (SEC) enforcement and examination developments, notable broker-dealer cases, and anticipated enforcement priorities for 2021, including under the potential leadership of SEC chair nominee Gary Gensler.
President Joseph R. Biden signed the American Rescue Plan Act of 2021 on March 11, which provides $1.9 trillion in relief funds across a broad spectrum of categories, including additional support for vaccine distribution, school reopenings, small business grants, tax credits, pension funds, unemployment support, health benefits, and homeowner assistance. Here are some key takeaways from the expansive bill that will be impactful to businesses across the United States.
Following the enactment of the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act in December 2020, the Biden administration announced several changes to the Paycheck Protection Program on February 22, 2021 aimed at providing greater access to funds for underserved businesses and communities. This LawFlash discusses these recent changes, highlighting key provisions and guidance for businesses seeking to participate in the program before it officially expires on March 31, 2021 (pending any additional legislation from Congress).
The US Senate on March 6 passed the Butch Lewis Emergency Pension Plan Relief Act of 2021 (EPPRA) as part of the American Rescue Plan of 2021 (H.R. 1319), the Biden administration’s $1.9 trillion COVID-19 stimulus package.
We previously reported on recent mortgage rulemakings that were finalized by the Consumer Financial Protection Bureau (CFPB or Bureau) late last year. Of the two final rules from the Bureau, one drastically simplifies the definition of a “qualified mortgage” (QM) (the General QM Final Rule), and the other provides an alternate pathway to QM safe harbor status for certain seasoned mortgage loans (the Seasoned QM Final Rule). Both of these final rules—with potentially major impacts on the housing market—were published in the Federal Register on December 29, 2020, with effective dates of March 1, 2021 (although the General QM Final Rule contains a mandatory compliance date of July 1, 2021).
The Office of Federal Contract Compliance Programs announced on March 2 that it has amended its 2020 Supply and Service Scheduling List by removing all establishments selected to receive focused reviews and compliance checks. Establishment-based compliance reviews, Corporate Management Compliance Evaluation reviews, Functional Affirmative Action Program reviews, and university compliance reviews will still proceed.
Much of the attention in President Joseph Biden’s executive actions in his first 100 days has been focused on his numerous executive orders on topics ranging from climate and COVID-19 to race and gender. Although these executive orders will immediately alter certain policies, observers have overlooked one non-executive order that may have a more consequential impact during the remainder of President Biden’s term: his January 20, 2021 memorandum titled “Modernizing Regulatory Review” (MMR).
President Joe Biden signed an executive order on February 24 to address possible vulnerabilities in the supply chains of critical national economic sectors, including the energy sector. The executive order directs various executive departments and agencies to complete, in coordination with private stakeholders, a series of assessments to evaluate the resiliency of supply chains in those key sectors. In his prepared remarks, President Biden explained that the order was prompted partly by concerns surrounding shortages in semiconductors, which are vital components of electronic devices used in everything from mobile phones to motor vehicles.
President Joe Biden has rescinded Presidential Proclamation 10014, the prior administration’s ban that suspended the issuance of certain green cards overseas and barred entry into the United States of certain groups of immigrants. Effective immediately, these individuals should be eligible to enter the United States as permanent residents, and US consular posts should begin issuing immigrant visas to these applicants.
We previously reported on recent mortgage rulemakings that were finalized by the Consumer Financial Protection Bureau (CFPB or Bureau) late last year. Of the two final rules from the Bureau, one drastically simplifies the definition of a “qualified mortgage” (QM) (the General QM Final Rule), and the other provides an alternate pathway to QM safe harbor status for certain seasoned mortgage loans (the Seasoned QM Final Rule).
President Joe Biden has been in office for 34 days and his nominee for Secretary of Labor, Marty Walsh, has not yet been confirmed. So far, Mr. Walsh has not publicly stated much regarding his views or intended priorities with respect to ERISA, although it is known that he has a background in labor organizing and the pension issues related to labor unions.
Morgan Lewis partner Eleanor Pelta authored a Law360 article about the potential immigration policies of the Biden administration. In the piece, she discussed current actions regarding immigration including eight executive orders, four memoranda, and three proclamations that concern or impact immigration.
As part of President Joe Biden’s efforts to address the continuing impact of the COVID-19 pandemic on American families, on February 16, the US Department of Housing and Urban Development, US Department of Veterans Affairs, and US Department of Agriculture (together, the agencies) announced a coordinated extension and expansion of forbearance and foreclosure relief programs. This announcement extends and expands the agencies’ forbearance and foreclosure relief programs through June 30, 2021. The programs were due to expire in March.
The US Department of State announced on February 10 that students possessing valid F-1 and M-1 visas who are seeking admission to the United States from the Schengen area countries, the United Kingdom, and Ireland no longer need to seek a National Interest Exception (NIE) to enter the United States. These travelers will automatically be able to enter the United States under a general NIE, without needing to obtain preauthorization from a US consular post.
Consumer Financial Protection Bureau (CFPB) Acting Director David Uejio has put a special focus on the manner in which responses are made to the CFPB’s consumer complaint system. Signaling the importance of this issue by undertaking it even before President Joe Biden’s nominee for director, Rohit Chopra, is confirmed to the position, Uejio has called out in a publicly released message to CFPB staff the possibility that some responses to complainants are incomplete—and vary by the complainant’s apparent demographic community.
With the arrival of a new US presidential administration, companies are anticipating potential shifts in enforcement priorities by the US Environmental Protection Agency (EPA) in the areas of climate change, the National Environmental Policy Act (NEPA), and emerging contaminants and chemical safety. In several areas, there is likely to be a rollback of the rollbacks of environmental rules implemented by the former administration, as well as an increased emphasis on environmental justice.
The inauguration of US President Joe Biden on January 20, 2021, marked the beginning of what will surely be a major transition across the US legislative and regulatory landscape—including the laws and regulations governing financial services firms in the United States.
Executive Order 13873 focused on securing the information and communications technology and services supply chain against transactions involving “foreign adversaries.” Companies in the information and communications technology and services sector should carefully study the new definitions, processes, procedures, and implications of the Interim Rule to ensure business continuity and stability.
The Biden administration has vowed to invoke the Defense Production Act (DPA) to increase domestic production of essential supplies needed to respond to the COVID-19 pandemic. In this Insight, we address key features of the DPA, guidance for companies that may receive a rated order, financing incentives offered by the DPA, and how we anticipate the Biden administration will use the DPA over the next year.
In May 2020, US President Donald Trump issued Executive Order 13920, banning the unrestricted import or use of certain categories of bulk-power system electric equipment from foreign adversaries, with a focus on Russian and Chinese equipment suppliers. The future of that regulation is now up in the air.
Shortly after the inauguration of President Joe Biden on January 20, former Consumer Financial Protection Bureau (CFPB or Bureau) Director Kathleen Kraninger submitted her resignation. Soon after that, the president announced that he had appointed David Uejio, a veteran CFPB official who most recently served as the Bureau’s chief strategy officer, to serve as acting director until the Senate confirms Rohit Chopra, his nominee for director.
In one of the last proposed notices from the US Department of Health and Human Services (HHS) under the Trump administration, HHS removed the 510(k) premarket notification requirement for seven types of gloves and proposed the same for 84 other devices ranging from gowns to ventilators.
President Joe Biden signed three new executive orders relating to immigration on Tuesday. Along with the executive orders issued immediately after his inauguration and the immigration legislative proposal sent to Congress on Day 1 of the new administration, these orders mark a stark new direction in immigration policy to strike a more welcoming tone with respect to immigrants, and to move away from the more restrictive rules and guidelines implemented during the Trump administration.
Among other features, the new guidance recommends that employers implement a COVID-19 prevention program and identifies key measures for limiting the spread of COVID-19.
US President Joe Biden’s focus on Buy American Act domestic preference regulations and agency practices of implementing regulations and issuing waivers is likely to lead to an increased focus on federal government contractors’ compliance with heightened requirements.
President Trump’s Executive Order Addressing the Threat from Securities Investments that Finance Communist Chinese Military Companies (EO 13959) prohibits transactions by or on behalf of US persons in publicly traded securities of Chinese companies identified by the US government as “Communist Chinese military companies.” This update discusses significant developments related to EO 13959 since our November 17 LawFlash, including OFAC actions and interpretations, and implications arising from those developments.
January 28 was designated as “health day” for President Joe Biden’s early push of executive orders, with two new executive actions added to a growing list. The Executive Order on Strengthening Medicaid and the Affordable Care Act and Memorandum on Protecting Women’s Health at Home and Abroad were described by President Biden as “restorative” of policies modified by the prior administration.
President Joe Biden issued a series of executive orders on January 27 to further confront the “existential threat” of climate change, to reaffirm the executive branch’s commitment to evidence-based policymaking and innovation, and to build on the executive actions taken on Day 1. This LawFlash provides an overview of several of the key actions under those orders.
President Joe Biden has signed several executive orders and announced other directives that will impact employers in the first 100 days of his administration, including guidance on protecting worker health and safety, economic relief for families and businesses, and racial equity and support.
President Joe Biden issued on January 25 an Executive Order on Ensuring the Future Is Made in All of America by All of America's Workers (EO). This EO leaves in place key portions of the prior administration’s July 15, 2019 EO 13881 (Maximizing Use of American-Made Goods, Products, and Materials) and related implementing regulations, orders a sweeping review of multiple domestic preference rules, including proposing standards for domestic products, and establishes a central Office of Management and Budget (OMB) authority to approve federal agency waiver requests of Made in America requirements.
President Joe Biden’s first days in office have focused heavily on issues of diversity, inclusion, equity, and human rights as applied across federal agencies and programs. We anticipate that this pattern will continue and that the principles underlying his first actions will heavily influence policy, federal contracting, and eligibility to participate in federal programs, and may help businesses focus their approach to federal policymaking going forward.
In an effort to curb the further spread of COVID-19, President Joe Biden has extended restrictions on US admission from the Schengen Area, the United Kingdom, Ireland, and Brazil as of January 26, and expanded the restrictions to include travel from South Africa as of January 30. The new restrictions prohibit travel from any of these regions during the 14-day period preceding anticipated entry to the United States, with certain exceptions.
Under President Joe Biden, pharmaceutical regulation may see increased FDA guidance, new strategies to speed up innovation and regulatory review, and a renewed focus on diseases with unmet needs, among other expectations.
President Joe Biden has elevated Democratic Commissioner Christopher T. Hanson to serve as Chairman of the US Nuclear Regulatory Commission (NRC). Mr. Hanson succeeds former Republican Chairman Christine Svinicki—the longest-serving Commissioner in the history of the agency—who stepped-down on January 20, 2021. Although timing is uncertain, President Biden also is expected to nominate a fifth Commissioner to fill the former Chair’s vacant seat. If that pick shares Chairman Hanson’s views, the agency’s longstanding threshold for intervenor challenges to license applications could be overturned.
In an expected move, President Joe Biden has designated Commissioner Richard Glick as the new FERC Chairman. Chairman Glick takes over from Commissioner James Danly, whose term as Chairman lasted less than three months.
Immediately following his inauguration on January 20, US President Joseph R. Biden, Jr. began taking executive action to enact many of his administration’s initial priorities, which included a number of executive orders, memoranda, and directives to cabinet agencies to address policies he detailed during his campaign, including the COVID-19 pandemic, climate change, equality, and the global economy. To help clients navigate potential changes from these actions, Morgan Lewis has provided a quick analysis of many of these orders and their impact. We will release more detailed pieces as the president unveils additional specifics of his First 100 Days plan.
Following the inauguration of President Joe Biden and Vice President Kamala Harris, President Biden signed several executive orders related to immigration. And, as promised by the Biden transition team, the Biden administration has sent a sweeping immigration reform proposal to Congress, where the effort to pass the bill will be led by Senator Robert Menendez of New Jersey. We provide below a summary of significant executive actions related to immigration, as well as a summary of the key points in the legislative proposal. We also summarize the status of certain Trump administration immigration rules post-inauguration.
As the 46th president of the United States, Joe Biden took significant steps on his first day in office to advance the energy and climate initiatives of his administration. This LawFlash provides a brief summary of several key actions, including the notice of the United States’ intention to rejoin the Paris Agreement, cancellation of the federal permit for the Keystone XL Pipeline Project, and directives by President Biden to certain federal agencies, as well as an overview of key members of his climate team who will be advancing administration policies.
It’s clear that President Joe Biden’s approach toward consumer protection and financial services enforcement will differ from that of his predecessor. In addition to general housekeeping matters, such as replacing and hiring personnel, it’s likely we’ll see more cooperation among state attorneys general, including across state lines, and federal agencies as well as a guaranteed increase in enforcement, especially against individuals in the coming days of the new administration.
Effective June 30, 2021, the US Department of Labor will determine the prevailing wage for permanent labor certifications and labor condition applications based on a new formula for computing prevailing wage levels, resulting in higher prevailing wage levels for all occupations in the Occupation Employment Statistics wage database.
Most media accounts suggest that the incoming Biden administration will usher in a more “aggressive” SEC enforcement posture, with renewed emphasis on investigating potential fraud and controls deficiencies at public companies. SEC Enforcement may face some short-term headwinds to this approach.
Our FDA and digital health teams recently published a LawFlash on how a Biden administration will affect the US Food and Drug Administration’s (FDA’s) oversight and regulation of medical devices and digital health.
The US Department of Treasury and the Internal Revenue Service released anticipated final regulations pertaining to the federal income tax credit for carbon capture projects under Section 45Q of the Internal Revenue Code on January 6, 2021. The final regulations in certain significant respects respond favorably to taxpayer comments to the proposed regulations released on May 28, 2020.
The Final Rule retains the “economic realities” test while focusing on two “core factors” in analyzing whether an individual is an employee or an independent contractor but given the upcoming change in administration, employers should not make any changes in reliance on the Final Rule.
Medical device companies should be prepared for an increase in FDA enforcement activity with the incoming Biden administration, in addition to changes in agency leadership and repeals of regulatory reform.
Morgan Lewis antitrust partners, Richard Taffet, Ryan Kantor and Will Tom co-authored an article “Antitrust Enforcement in a Biden Administration,” for a special issue of Concurrences Competition Law Review focused on the topic The New US Antitrust Administration.
The US Department of Energy (DOE or Department) finalized a rulemaking proceeding last week that revises its National Environmental Policy Act (NEPA) implementing procedures pertaining to certain authorizations under the Natural Gas Act (NGA). This update limits DOE’s review of environmental impacts associated with natural gas exports to certain countries; DOE’s review will only consider the environmental effects of marine transportation, which DOE has also determined as not creating a significant environmental impact.
Morgan Lewis partners Susan Harthill, Jennifer Breen, and Kenneth Polite authored a Law360 article about the pace of personnel changes that could result in federal agencies under a Biden administration.
While workplace safety standards have been thrust into the national conversation since the coronavirus (COVID-19) pandemic began, Occupational Safety and Health Administration (OSHA) enforcement has been relatively quiet. That will likely change under a Biden administration.
Morgan Lewis partners Sandra Moser and Kenneth Polite authored a Law360 article about what a Biden administration will likely mean for white collar enforcement actions under the US Department of Justice (DOJ).
With only weeks until the US presidential administration changes hands, companies and consumers alike are anticipating what a Biden presidency will mean for consumer financial protection and for the Consumer Financial Protection Bureau (CFPB), the agency charged with overseeing it. Partner Robin Nunn and of counsel Eamonn Moran outline some of the changes that may lie ahead.
A new US presidential administration brings new priorities across various areas and industries, including regulation and enforcement of activities that affect the environment. With President-Elect Joe Biden expected to assume the presidency on January 20, 2021, there are a number of considerations for companies tracking potential changes to the law governing the use of chemicals and antimicrobials.
There was a perception in 2017 when then President-elect Trump took office that white collar enforcement actions under the US Department of Justice (DOJ) might drop dramatically. Many expected the Republican administration to effect policy changes or resourcing decisions that would keep corporations out of the spotlight when it came to major investigations and massive penalties.
The new Executive Order (EO or the Order) bans transactions by US persons in publicly traded securities of companies identified as “Chinese military companies,” and includes a ban on trading in derivatives of those securities and any securities designed to “provide investment exposure” to such securities, thereby capturing Exchange Traded Funds and arguably extending to funds that rely on those companies’ securities in any manner. The EO provides an 11-month wind down for divestiture of covered securities and positions.
Last week’s state attorney general races brought little change on the surface, but change in Washington significantly increases the risk of enforcement and litigation by the states. If it seems counterintuitive, it is. But this Washington changeover heightens the complexity of the relationship between Washington and state capitols.
Partner Elizabeth Goldberg is featured in SHRM’s Compensation & Benefits Update newsletter in an article about the issuance of a final rule by the US Department of Labor (DOL) allowing retirement plan fiduciaries to consider climate change and other environmental, social, and governance (ESG) factors when picking investment options and exercising shareholder rights for plan-held securities.
Partner Lance Dial spoke with Ignites about the US Department of Labor’s (DOL’s) final rule regarding the consideration of environmental, social, and governance (ESG) factors in choosing retirement plan investments.
Partner Brian Soares spoke to Business Insurance about how companies should prepare for the US Security and Exchange Commission’s (SEC’s) new rules requiring companies to implement clawback policies to recover incentive-based compensation in the event of a required accounting restatement.
An ETF.com blog cited a report from Morgan Lewis lawyers about a new rule from the US Securities and Exchange Commission to require mutual funds and most exchange-traded funds to provide shareholders more concise shareholder reports.
Partner Kelly Gibson’s previous quotes were cited by The Corporate Counsel about the US Security and Exchange Commission’s (SEC’s) view of materiality and environmental, social, and governance (ESG) disclosures.
Associate Arjun Prasad Ramadevanahalli was quoted by Bloomberg Law for a story about the Biden administration’s push to shore up cybersecurity for 16 critical infrastructure sectors in the country. Arjun noted that what begins as a voluntary measure for an industry regularly becomes a requirement.
Partner Justin Weitz spoke on the Cryptonite with Rich Goldberg podcast, where he discussed the US Department of Justice’s (DOJ’s) approach to cases involving allegations of crypto fraud and what fintech companies can learn from the collapse of centralized cryptocurrency exchange FTX.
Law360 features partner Ignacio Sandoval in an article covering how the Financial Industry Regulatory Authority (FINRA) recently announced that it is conducting a targeted examination of broker-dealer practices related to retail communications about crypto asset products and services.
Partner Kelly Gibson’s remarks at the Securities Enforcement Forum 2022 about how companies can prepare for the US Securities and Exchange Commission’s (SEC’s) proposed climate risk disclosure rule were featured in a CFO Dive article.
Partner Howard Young is quoted in a Hospice News article about the first round of audits of hospice provider relief funds (PRFs) by the US Department of Health and Human Service’s Office of Inspector General (OIG). The piece quotes a recent Morgan Lewis blog post by Howard about the OIG’s look at compliance with requirements for the funds provided by the Coronavirus Aid, Relief, and Economic Security Act, which noted that the audits extend beyond hospices.
Partners Carl Valenstein and David Plotinsky discuss Committee on Foreign Investment in the United States (CFIUS) considerations for investors in the United States with Lexology PRO. They provide an overview of CFIUS reforms and Foreign Investment Risk Review Modernization Act (FIRRMA) regulations, mandatory filing requirements, and strategies for addressing CFIUS concerns.
Partner Robert Abramowitz spoke to PLANADVISER for a story about the Internal Revenue Services’ (IRS’) move to allow 403(b) plans to apply for determination and termination letters. Bob noted that making the determination letter process available to 403(b) plans is “good news for many,” but that sponsors of long-standing 403(b) plans that seek determination letters may have long-standing flaws revealed as part of the process.
Partner Kirstin Gibbs and associate Arjun Ramadevanahalli wrote an article for Law360 about the Transportation Security Administration’s (TSA’s) issuance of cybersecurity rules for railroads. The article covers lessons railroad owners can take from the pipeline industry, which has had similar cybersecurity rules in place for more than a year.
Partners Ami Wynne, Larry Turner, Sharon Masling, Emily DeSmedt, and John Lee, and of counsel Pierce Blue wrote an article featuring a Morgan Lewis LawFlash for LexisNexis’ Practical Guidance, covering the oral arguments presented before the US Supreme Court debating the legality of race-conscious admission programs used by Harvard University and the University of North Carolina. The article discusses how the decisions in these cases could impact employer diversity, equity, and inclusion programs.
Partner Julie Stapel is featured in a PLANADVISER article about how the US Department of Labor’s delay in finalizing environmental, social, and governance (ESG) guidance for retirement plans played a role in the decrease of ESG incorporation by institutional investors this year.
Of Counsel Pierce Blue is quoted in an article from HR Magazine about ballot measures voters will be deciding on in the upcoming election.
Partner Giovanna Cinelli discussed export controls on advanced computing and semiconductor equipment destined for China recently announced by the US government with Export Compliance Daily.
HR Magazine quoted partner Larry Turner in an analysis about how two higher education–related affirmative action cases before the Supreme Court could impact diversity programs in the workplace.
An InvestmentNews article details reactions to the US Securities and Exchange Commission’s (SEC’s) proposal of a new rule and rule amendments under the Investment Advisers Act of 1940 to prohibit registered investment advisers from outsourcing certain services and functions without conducting due diligence and monitoring of service providers.
Partner Duke McCall was featured in a Q&A with The National Law Journal about the significance of the US Environmental Protection Agency’s (EPA’s) new Office of Environmental Justice and External Civil Rights and how it may affect new permitting requests.
Partner Pulina Whitaker was quoted by The Legal Diary about the White House’s executive order on transatlantic data transfers.
Partners Erin Martin and Celia Soehner authored an article for Bloomberg Law outlining ways public companies can prepare for an expected move by the US Securities and Exchange Commission (SEC) to take a closer look at human capital disclosures in public company filings. Erin and Celia note important steps for public companies to take to be responsive to the potential regulatory scrutiny and investor demands.
Partner Kelly Gibson was quoted in a The Wall Street Journal article that highlights key takeaways from the publication’s Pro Sustainable Business Forum.
At the start of 2022, the US Securities and Exchange Commission (SEC) proposed amendments to Form PF that would require large hedge fund advisers and all private equity (PE) advisers to file a report within one business day of certain stress events. Eight months later, the SEC, in conjunction with the US Commodity Futures Trading Commission (CFTC), proposed a second set of amendments. Comments to the proposal are due October 11, 2022.
As hedge funds prepare for the quickly approaching implementation date for the US Securities and Exchange Commission’s (SEC’s) new marketing and advertising rule on November 4, partner Christine Lombardo speaks with InvestmentNews on what investment advisors can do to prepare.
Partner Daniel Tehrani was quoted in a Global Investigations Review article on uncertainty around the outcome of the changes to the US Department of Justice’s (DOJ’s) corporate enforcement policies.
Morgan Lewis partners Kirstin Gibbs and Daniel Savrin and associate Mark Fanelli authored an article for Reuters about the boom in micromobility technology like escooters and autonomous delivery robots for use in moving people and goods over short distances. The article outlines how regulatory approaches—particularly at the state and local level—can further encourage adoption of this technology—technology seen as key to reducing greenhouse gas emissions.
Partners Kelly Gibson and Erin Martin are featured in a The Legal Intelligencer article discussing how the US Security and Exchange Commission (SEC) could focus more on human capital disclosures as more companies include details about their workforce as part of their environmental, social, and governance (ESG) priorities.
Partners Levi McAllister and Sheila Armstrong and Senior Director Timothy Lynch wrote an article for Law360 covering key considerations for companies and individuals looking to use federal funding meant to encourage the adoption of electric vehicles. The article addresses access to charging infrastructure, ownership and operation of chargers, commercial agreements, vehicle-to-grid capacity, and the Inflation Reduction Act of 2022.
Partner and member of the firm’s Climate Change Working Group Duke McCall was quoted in an article from Chemical Week about the creation of the Office of Environmental Justice and External Civil Rights (OEJECR) within the United States Environmental Protection Agency (EPA).
Partner Dan Tehrani spoke with ACI Insights regarding US Deputy Attorney General (DAG) Lisa Monaco’s announcement of several important updates to the US Department of Justice’s (DOJ’s) criminal enforcement policies.
Hedge funds are preparing for the implementation of the US Securities and Exchange Commission’s (SEC’s) new marketing and advertising rule on November 4. Partner Christine Lombardo told FundFire that hedge fund legal and compliance teams will need to “kick the tires” on their materials and relationships—especially around fundraising activities—to make sure they are compliant with the complicated rule.
Partner Sandra Moser, a former chief of the US Department of Justice’s (DOJ’s) Criminal Division Fraud Section, was quoted by Bloomberg Law in a story about months-long delays by the DOJ in appointing compliance monitors for three companies that agreed to reviews as part of settlements.
Hedge Fund Law Report released the second article in a two-part series analyzing the US Securities and Exchange Commission’s (SEC’s) second set of proposed amendments to Form PF—in conjunction with the US Commodity Futures Trading Commission (CFTC)—released on August 10, 2022.
Partner Ken Nunnenkamp commented to GCR on President Joe Biden’s issuance of an executive order expanding on the existing list of factors that the Committee on Foreign Investment in the United States (CFIUS) should consider when reviewing deals for national security concerns.
Partner Dan Tehrani spoke with The Am Law Litigation Daily following a speech made by Deputy Attorney General Lisa Monaco providing updates on US Department of Justice (DOJ) policies, allowing prosecutors to consider how quickly a company reports potential misconduct.
In an article published by PLI Chronicle, partner Stephanie Feingold discusses the US Environmental Protection Agency’s (EPA’s) release of a pre-publication proposed rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers, as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
Partner Daniel Savrin and associate Mark Fanelli authored an article for Automotive World about the current state of federal and state regulations around autonomous vehicles (AVs). As congressional action around AVs remains elusive, AV stakeholders are looking to states that incentivize autonomous driving technologies, including Michigan, California, and Arizona, exemplified by their progressive statutory frameworks, AV testing sites, and highly educated workforces.
Partner Ken Nunnenkamp spoke to Law360 about an executive order laying out specific sectors for the Committee on Foreign Investment in the United States (CFIUS) to focus on as it endeavors to find and block acquisitions by foreign entities that could jeopardize US national security.
Partners Erin Martin and Lance Dial are featured in a The Legal Intelligencer article as part of a group of lawyers navigating the quickly evolving climate change disclosure regulatory landscape tied to the US Securities and Exchange Commission’s (SEC’s) environmental, social, and governance (ESG) rules.
Talking to Law360 Tax Authority, partner Michael Kummer discussed a proposed rule that would establish how the Internal Revenue Service (IRS) will operate its Independent Office of Appeals to resolve federal tax controversies that do not require litigation.
Partner Kirstin Gibbs spoke with Reuters Events Renewables about how the Inflation Reduction Act of 2022 (IRA) is the latest tool by the Biden-Harris administration to support the growing hydrogen industry.
Partner Lance Dial spoke with Pensions & Investments about comments the US Securities and Exchange Commission received on its proposals around environmental, social, and governance disclosures.
Partner Lance Dial is featured in the second article of a two-part series from Private Equity Law Report on best practices for private fund managers to comply with proposed environmental, social, and governance (ESG) rules from the US Securities and Exchange Commission (SEC).
Partner Levi McAllister and associate Pamela Wu wrote an article for Law360 about how enforcement actions from the Federal Energy Regulatory Commission (FERC) could increase due to new proposed legislation.
Partner Stephanie Feingold commented in a Bloomberg Law article on the US Environmental Protection Agency’s (EPA’s) proposed rule, RIN: 2050-AH09, which calls for designating perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), and their salts and structural isomers as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
The US Securities and Exchange Commission recently issued a proposal to expand the definition of broker-dealers to cover firms that escape regulation through electronic trading. A The Deal article reports on some of the comment letters received by the SEC.
Partner Stephanie Feingold commented in a Bloomberg Law article on the US Environmental Protection Agency’s (EPA’s) proposed rule designating perfluorooctanoic acid (PFOA), perfluorooctane sulfonate (PFOS), and their salts and structural isomers as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
The US Department of Health and Human Services Office for Civil Rights (OCR) recently issued guidance on how covered entities can use audio-only telehealth services in compliance with the Health Insurance Portability and Accountability Act of 1996.
Although the US Securities and Exchange Commission (SEC) and its staff members have issued informal guidance on when a chief compliance officer (CCO) could be held personally liable for a compliance failure, uncertainty remains—compounded by the often-limited information provided in SEC settlement orders.
Partner Kenneth Nunnenkamp was featured in the “Ten Minutes On” Foreign Investment Watch video series discussing his and partner Giovanna Cinelli’s report, “Analysis: It’s Time to Create ‘The Commission on Foreign Investment and National Security.”
Partner Ryan Lighty was featured in an S&P Global Commodity Insights Platts Nucleonics Week article that detailed federal efforts to incentivize high-assay low-enriched uranium production with $700 million earmarked in the Inflation Reduction Act of 2022.
A CNBC.com article cited a LawFlash by partners Paul Gordon and Ryan Lighty and associates Jared Sanders, Scott Clausen, and Wendy Simon-Pearson about what the Inflation Reduction Act of 2022 (IRA) could do for the nuclear industry.
Partners Sharon Perley Masling and Sage Fattahian, senior attorney Pierce Blue, and associates Daniel Kadish, Kaiser Chowdhry, and Jake Harper drafted an article for Bloomberg Law about steps employers can take in response to the mpox (previously known as monkeypox) outbreak.
Partner Ryan Lighty detailed the US Congress’s efforts to incentivize coal-to-nuclear transitions in an article for Law360.
Partner Ella Foley Gannon spoke with Law360 about the Biden-Harris administration’s emphasis on transmission project permitting on public lands.
Partner Kathleen Sanzo spoke at a recent Food and Drug Law Institute (FDLI) event, discussing how the US Department of Justice’s (DOJ’s) Consumer Protection Branch works with the US Food and Drug Administration (FDA) to investigate civil and criminal matters involving misbranded products.
Partner Levi McAllister spoke with Law360 about the Inflation Reduction Act, which earmarks funds to encourage the purchase and development of clean vehicle technology. Levi commented on how this proposed legislation is another tool the Biden-Harris administration is deploying to meet its electric vehicle goals.
The US Department of Health and Human Services has renewed the Public Health Emergency (PHE) for another 90 days, now extending through October.
A recent LawFlash authored by partner Banee Pachuca and associate Felicia Alexander was cited in a Policy & Medicine article analyzing the US Department of Health and Human Services (HHS) Office of Inspector General’s (OIG’s) recent release of the Advisory Opinion No. 22-14, highlighting fraud and abuse considerations for provider-sponsored continuing education programs.
Partner Levi McAllister was quoted by Law360 in a midyear update on the transportation industry.
The US Department of Health and Human Services (HHS) once again extended the COVID-19 public health emergency (PHE) until October 6.
In an effort to combat telehealth fraud, waste, and abuse, the US Department of Health and Human Services (HHS) Office of Inspector General (OIG) composed a special fraud alert that provides guidelines for collaborating with telehealth companies, reports mHealth Intelligence.
At the midyear mark of 2022, Law360 recaps some of the year’s most remarkable US Supreme Court rulings and analyzes their implications on healthcare and pharmaceutical law.
Partner Daryl Landy was quoted by Law360 about new guidance from the US Equal Employment Opportunity Commission (EEOC) around COVID-19 screening protocol. “Instead of being able to say, we're going to have a blanket, national policy, [now] it should be evaluated location by location, and employee by employee,” Daryl said. “It's a lot of work for employers.”
Partner Kirstin Gibbs and associate Pamela Wu drafted an article for Reuters on how new natural gas permitting proposals from the US Federal Energy Regulatory Commission (FERC) could affect the development of new pipelines. This proposal is gaining a lot of attention in the energy industry, as President Joseph Biden has pledged more natural gas to supplement the previous supply from Russia.
There’s been an increase of anti-kickback and fraud cases as regulators have zeroed in on the hospice industry. How a hospice works with referral sources can be a red flag that brings providers criminal charges in False Claims Act (FCA) cases.
The first half of 2022 has seen US Securities and Exchange Commission (SEC) Chair Gary Gensler move swiftly in introducing a range of progressive—and often controversial—rulemaking proposals.
Partners David Monteiro, Daniel Savrin, and Philip Russell and of counsels Nicholas Gess and Eamonn Moran authored an article for Law360 on how a June 23, 2022, US Federal Trade Commission proposed rule could affect the way dealers interact with customers in the automotive financing process and impact finance companies—both those affiliated with original equipment manufacturers and others.
Does a recent US Food and Drug Administration’s (FDA’s) decision to allow pharmacists to prescribe Pfizer’s COVID-19 antiviral indicate that this idea could be applied more broadly post-pandemic?
In a roundup of the top Medtech Insight stories from June, the two-part article series analyzing stakeholder comments on the US Food and Drug Administration’s (FDA’s) proposed change from the Quality System Regulation (QSR) to the Quality Management System Regulation (QMSR) landed in the No. 2 and No. 4 slots.
Partner Neeraj Arora spoke with Law360 for a midyear update on the state of energy dealmaking.
Partner Stephanie Feingold provided a mid-year update on select environmental policy developments we’ve seen so far in 2022.
Partner Elizabeth Goldberg and associate William Marx contributed a column to Benefits Magazine. The column covers the US Department of Labor’s (DOL’s) program for investigating retirement plans and their fiduciaries and nine areas of focus for DOL plan fiduciary investigations that may affect plan service providers, trustees, and plan administrators.
In an article for POWER magazine, partner Daniel Skees and associate Robert Goldfin discussed the federal and state support for new offshore wind projects to achieve emissions-reduction goals. They also lay out some of the key points to consider when navigating regulatory, environmental, and stakeholder hurdles that could lead to costly delays.
Partner Levi McAllister spoke with Automotive News for a special report on the electric vehicle (EV) industry.
Partner Levi McAllister and associate Maggie Curran wrote an article for Law360 on proposed federal mandatory standards for the development and operation of publicly available electric vehicle (EV) charging infrastructure in US markets.
Partners Erin Martin and Lance Dial spoke to Compliance Week about the US Securities and Exchange Commission’s (SEC’s) regulatory agenda for spring 2022.
Partner Scott Memmott and associates Jacob Harper and Jonathan York wrote an article for Law360, explaining that although the US Department of Justice's (DOJ’s) COVID-19 fraud enforcement has so far focused on individuals and entities blatantly abusing pandemic assistance funds, health care and life sciences companies should assess their compliance programs as the DOJ will likely turn to larger-dollar activity at the organization level soon.
Associate Jake Harper, Executive Director of the Center for Telehealth and E-Health Law (CTeL) Christa Natoli, and Director of Policy and External Affairs for CTeL Ben Steinhafel recently discussed the current regulatory landscape for telehealth at both the federal and state level on the Healthcare Strategies podcast.
In the second article of a two-part series, partner Rick Rothman detailed the Biden-Harris administration’s energy targets related to electric vehicles (EVs) and related litigation around the proposed transition to EVs. Rick details California’s implementation of climate change-related vehicle emissions standards and zero-emissions goals and how those may apply to other states.
Partner Sharon Perley Masling spoke with Bloomberg Law about potential benefits and tax implications for employers considering covering their employees’ out-of-state travel costs if the Supreme Court invalidates Roe v. Wade.
The US Securities and Exchange Commission (SEC) recently proposed amendments to enhance and modernize the Investment Company Act of 1940 Names Rule to address and prevent misleading or deceptive fund names.
In a Reuters article, partners Andrew Budreika and Liz Goldberg and associate Ben Stango examine some key credit agreement provisions governing one of the hottest banking products in environmental, social, and governance (ESG)—sustainability-linked loans (SLLs).
Partner Levi McAllister spoke with Law360 about a recent proposal from the US Department of Transportation to standardize the development and maintenance of electric vehicle charging stations
The US House of Representatives voted to pass legislation reauthorizing several user fee programs at the US Food and Drug Administration (FDA) on June 8, 2022.
The US House of Representatives recently passed the long-awaited US Food and Drug Administration (FDA) user fee reauthorization bill. All eyes are now on the US Senate, which is expected to hold a postponed markup hearing on its version of the bill that includes several other provisions.
The Responsible Financial Innovation Act—a long-awaited bipartisan bill—that would assign most oversight of cryptocurrencies to the US Commodity Futures Trading Commission (CFTC) was recently introduced.
Private Equity Law Report’s third article in a three-part series covered the US Securities and Exchange Commission’s (SEC’s) proposed private fund reforms and the potential impact on the industry, laying out the specific industry concerns for each of the proposed rules and discussing the next steps for SEC and private fund managers.
In a roundup of Medtech Insight’s most-read articles in May, the publication’s coverage of the US Food and Drug Administration’s (FDA’s) draft Quality Management System Regulation (QMSR) landed in the No. 1 slot.
Partner Lance Dial was interviewed by The Investment News Podcast to discuss the US Securities and Exchange Commission’s (SEC’s) new proposed rules related to environmental, social, and governance investing.
Associate Amy McDonald spoke with Ignites about the US Securities and Exchange Commission’s (SEC’s) proposal that details how investment funds should disclose their portfolio companies’ greenhouse gas emissions.
The US Department of Justice (DOJ) recently submitted its filing in response to one of the US Supreme Court’s invitations on a major False Claims Act (FCA) issue.
The Office for Civil Rights (OCR) released a request for information (RFI) soliciting public comment on how regulated entities are voluntarily implementing security practices under the Health Information Technology for Economic and Clinical Health (HITECH) Act.
The second article in a three-part series addressing the US Securities and Exchange Commission’s (SEC’s) proposed rules for the private funds space provides general observations and explains the types of funds impacted by the proposal, covering what it says about the SEC’s view of the private funds space.
Associate Amy McDonald spoke with Bloomberg Law about the US Securities and Exchange Commission’s (SEC’s) proposal that would require investment funds to disclose their portfolio companies’ greenhouse gas emissions.
In the first of a two-part series analyzing various stakeholder comments on the US Food and Drug Administration’s proposed Quality Management System Regulation, partner Dennis Gucciardo shared insights on comments from the Medical Device Division of the American Society for Quality.
Partner Lance Dial spoke with Compliance Week about the US Securities and Exchange Commission’s (SEC’s) proposal for new environmental, social, and governance (ESG) disclosure requirements for investment advisers, investment companies, and business development companies.
The first article in a three-part series addressing the US Securities and Exchange Commission’s (SEC’s) proposed rules for the private funds space explains the types of funds impacted by the proposal, provides an overview of the seven rules and rule amendments contained in the proposal, and discusses the importance of comments on the proposal by private fund managers.
The US Environmental Protection Agency announced on May 18 the addition of five per- and polyfluoroalkyl (PFAS) chemicals to its Regional Removal Management Levels and Regional Screening Levels. These additions signal the agency’s increasing efforts to investigate and address PFAS chemicals at sites of alleged contamination.
Partner Elizabeth Goldberg spoke with Law360 discussing key takeaways from the US Department of Labor's comment period, soliciting input on how the agency could protect workers' retirement savings from climate-related financial risks.
Partner Lance Dial was quoted in a Pensions & Investments article looking at the pace of new proposals coming out of the US Securities and Exchange Commission (SEC).
Partner Levi McAllister spoke with Federal News Network on how the Federal Energy Regulatory Commission (FERC) is addressing energy, the climate and infrastructure.
PYMNTS TV sat down with Morgan Lewis partner Jon Roellke at the American Bar Association’s 2022 Antitrust Law Spring Meeting as part of the “Voices from the ABA” video series providing an outlook on the US antitrust landscape.
The US Department of Justice (DOJ) Antitrust Division announced significant guidance updates to its leniency program on April 4, 2022. Under the program, companies that self-report antitrust conspiratorial activity to the government (and then fully cooperate with the government in its investigation) can receive immunity from the significant fines — and criminal sentences — imposed under the antitrust laws and a de-trebling of civil fines after meeting certain requirements.
Morgan Lewis partners Lance Dial, Erin Martin, and Kirstin Gibbs drafted an article for Reuters describing key provisions of the US Securities and Exchange Commission’s (SEC’s) proposed climate disclosure rules related to asset management.
The Financial Industry Regulatory Authority (FINRA) is accepting public comments on a proposed rule that could drastically change how new exchange-traded funds (ETFs) are treated and how easily retail investors can trade them - a move that is drawing fire from some sectors of the industry.
With tax season in full swing, partner Sarah-Jane Morin discusses with Barron’s how investment companies and those being labeled as crypto brokers under the current Treasury Department definition are having a hard time complying with the transaction reporting requirements.
In an interview with Pensions & Investments, partner Erin Martin explained how the US Securities and Exchange Commission’s (SEC’s) proposal to expand climate-related disclosures required by public companies could be a “monumental rule-making initiative.”
In an interview with CNBC.com, partner Erin Martin discussed the Securities and Exchange Commission’s (SEC’s) recently unveiled proposal to expand climate-related disclosures required by public companies.
In a recent Expert Analysis piece published by Law360, partners Jeremy Esterkin and Rick Rothman discussed the US Environmental Protection Agency’s March 9 announcement reversing the former administration’s decision to revoke California’s authority to set tailpipe emission standards more stringent than those established by the agency.=
The Food and Drug Administration (FDA) restarted its domestic surveillance inspections in February, with plans to begin conducting foreign prioritized inspections in April.
As the battle over crypto regulation plays out across the globe, partner Michael Philipp speaks with Protocol about how the United States is grappling with some of the bigger regulatory concerns given its fragmented financial regulatory scheme with multiple agencies competing for a role in crypto.
In Practical Guidance, partners Liz Goldberg and Michael Richman and associate Emily Rickard wrote about the US Department of Labor’s (DOL’s) Employee Retirement Income Security Act of 1974 (ERISA) enforcement strategy and recent priorities, the department’s fiduciary duties and prohibited transaction rules, and its organizational structure and enforcement resources.
Partner Liz Goldberg spoke to Pensions & Investments about the US Department of Labor’s proposed rule titled, “Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights,” which states that climate change and ESG factors are open material and that fiduciaries should consider them as factors in the assessment of investment risks and returns.
On March 9, President Joseph Biden signed an executive order on ensuring responsible development of digital assets.
Partner David Sirignano spoke to The Deal about the Securities and Exchange Commission’s new disclosure rules set to discourage insurgent fund campaigns, and the new proposed public disclosure rules the agency issued for the derivatives market.
In a Bloomberg Law article covering the $1 billion in federal money being allocated to the Environmental Protection Agency’s (EPA’s) Superfund program, partner Duke McCall noted that the recent increase in Superfund backing is historic for the agency.
Partner Dennis Gucciardo spoke to Medtech Dive about the structure of the Food and Drug Administration’s (FDA’s) new proposed rule, which adopts an international standard for US quality system regulations.
A Hedge Fund Law Report article covers the US Securities and Exchange Commission’s (SEC’s) recent settled enforcement action against an SEC-registered investment adviser, further proving that the SEC continues to scrutinize advisers’ use of backtested results including their policies and procedures governing that rule.
Partner Rebecca Dandeker spoke to HBW Insight about the Food and Drug Administration’s (FDA’s) final guidance for marketers, outlining how to respond voluntarily to recalls of food, drug, medical technology, and personal care products.
Partner Reece Hirsch recently spoke to Healthcare Risk Management about the HIPAA Safe Harbor Bill, explaining that despite its name, the law does not provide absolute protection for HIPAA-covered entities and business associates—making it important for risk managers and compliance officers to review their security programs and determine qualification.
Partner Sarah Brodie joined Bloomberg Law’s Talking Tax podcast to discuss the Biden-Harris administration’s Build Back Better tax plans, which were stalled in the Senate late last year.
In an article on the proposed Health Data Use and Privacy Commission Act, HealthLeaders Media cites a recent blog post from partner Reece Hirsch and associate Sydney Swanson.
An HBW Insight article reports that some stakeholders may have questions about the Office of Nonprescription Drugs in FDA’s Center for Drug Evaluation and Research, stating that Y Type meetings are limited to one per OMOR. Partner Rebecca Dandeker pointed out that meetings under the agency’s other drug user fee-supported programs aren't limited to one per new drug application (NDA).
While the Food and Drug Administration (FDA’s) draft guidance on meetings discussing potential over-the-counter (OTC) monograph order requests (OMOR) notes its applicable timeline will go into effect in October, partner Rebecca Dandeker tells HBW Insight she believes that the FDA would be open to meetings sooner.
Partner Giovanna Cinelli spoke to Compliance Week about the implications of Russian sanctions for US companies.
Enforcement of the US Department of Justice’s new cyberfraud initiative will first occur largely through civil investigations that broadly apply the False Claims Act, so health care organizations should ensure that their practices can withstand hacks, whistleblowers, and government scrutiny, write partners Kathleen McDermott and Mark Krotoski in an article for Law360.
Partner Levi McAllister authored an article in Law360 on recent guidance from the US Department of Transportation, which provides clarity on how and when funding from the Infrastructure Investment and Jobs Act will be made available for electric vehicle charging stations.
Partner Zane Memeger spoke to CFO about the key points CFOs should know regarding the Biden-Harris administration’s strong stance on prosecuting white collar crime, and the US Department of Justice’s efforts to hold companies accountable.
A Payments Dive article reports on the approaching March 1 deadline for major “buy now, pay later” (BNPL) firms to provide their responses to the Consumer Financial Protection Bureau (CFPB).
A LawFlash authored by partners Christine Lombardo and Joseph Zargari and of counsel Sarah Riddell was republished by TabbFORUM.
In a recent Morgan Lewis webinar covered by Private Equity International, partner Courtney Nowell spoke about the US Securities and Exchange Commission’s proposed new rules requiring the benefits provided to larger institutions—including co-investment rights or favorable economics—to be disclosed to investors, and prohibited if considered harmful.
Partner Julie Stapel spoke to CNBC about the US Department of Labor’s recent memo that limits legal parameters provided by former Trump-era guidance for employers offering employees a 401(k) plan fund with an allocation to private equity.
Partner Kirstin Gibbs spoke with Law360 about how the Federal Energy Regulatory Commission’s (FERC’s) plans to evaluate natural gas projects based on greenhouse gas emissions may be affected by a recent court decision.
While the US Department of Justice Fraud Section secured 50% more convictions and nearly double as many trial wins in 2021 compared to 2020, the number of corporate-specific resolutions declined last year.
Power Magazine quoted partner Levi McAllister explaining how the US Departments of Energy and Transportation’s new National Electric Vehicle Infrastructure (NEVI) Formula Program will deploy the $5 billion allocated to create a nationwide network of electric vehicle (EV) charging stations.
Due to the pandemic-fueled shift toward online and mobile app shopping, the “buy now, pay later” (BNPL) market has experienced sharp growth. In an article for Bloomberg Law, lawyers Eamonn Moran and Robin Nunn discuss the current regulatory landscape on point-of-sale BNPL financing.
Tim Lynch, senior director of the strategic government relations and counseling practice, spoke to Automotive News about the upcoming Senate vote that will decide if Steven Cliff, current deputy administrator to the National Highway Traffic Safety Administration (NHTSA), will lead the agency.
In Law360, partners Anne Marie Estevez and Ezra Church, along with associate Emily Kimmelman, explain the potential ramifications a recent case involving customer reviews could have on the retail industry.
The Office of the Comptroller of the Currency’s true lender rule provided a uniform standard to determine when a national bank is acting as a lender when it partners with other service providers. But with Congress’s passing of the Congressional Review Act, which invalidated the rule, partners Reed Auerbach, Susan DiCicco, and David Monteiro contemplate in The Journal of Structured Finance whether the bank partnership model has taken one step forward and two steps back.
In Power magazine, partner Levi McAllister details some of the hurdles and opportunities awaiting electric vehicles (EVs) in 2022.
AACPsharedinsights from partner Howard Young on plans by the US Department of Health and Human Service’s Office of Inspector General (OIG) to conduct a nationwide review of hospice beneficiary eligibility, citing Howard’s Health Law Scan blog post.
In Law360, partner Levi McAllister discusses regulatory frameworks and interconnection policy for emerging electric vehicle (EV) infrastructure, noting much of the EV policymaking will occur at the state level.
Associate Jake Harper spoke with Xtelligent Healthcare Media about key pieces of telehealth legislation moving through Congress in 2022 and the factors that could potentially stop their passage, as well as the additional regulations needed to advance telehealth usage.
Partner Tom Linguanti spoke with Tax Notes about the Internal Revenue Service’s (IRS’s) strategy of focusing enforcement efforts on specific areas, providing examples of issues this may cause—including transfer pricing cases being held up while revenue agents look for intercompany services because of the IRS’s focus on this matter—meaning issues that should be resolved on audit instead have to be elevated.
In Reuters, partners Ella Foley Gannon, Levi McAllister, and Rick Rothman discuss how changes in the transportation industry—the largest source of greenhouse gas emissions in the United States—could make it the industry to watch in the fight against the effects of climate change.
Partner Sandra Moser spoke to Law360 about the new era of corporate enforcement that will be seen in 2022, following the announcement of new Department of Justice (DOJ) corporate criminal policies unveiled last year.
Partner Dan Skees spoke with Law360 about how the Federal Energy Regulatory Commission’s (FERC’s) transmission policy is something energy lawyers are keeping tabs on in 2022.
Partner Levi McAllister spoke to Law360 about the transportation industry’s top legislative and regulatory priorities in 2022, including the Federal Highway Administration’s new programs for electric vehicle charging stations.
As employers continue to deal with the ongoing impacts of the pandemic heading into 2022, partners Michael Jones and Siobhan Mee and associate Alana Genderson shared some related legal trends to watch in the new year.
This chapter covers financial and tax incentives for the selling shareholder, the company, and the employees; prohibited actions following a 1042 transaction; S-corporation ESOPs; and the by-products of an ESOP.
Partner Sandra Moser spoke to The National Law Journal about the Biden administration’s focus on anticorruption as a national security priority, and how the US Department of Justice has worked in recent years to encourage companies to report misconduct voluntarily—particularly in foreign bribery cases, where corporations and counsel often work with federal investigators.
Partner Sandra Moser spoke to Law.com about the Biden administration’s new strategy to combat global corruption and the 38‑page blueprint that outlines these efforts, which include expanding enforcement actions, fixing vulnerabilities in the US financial system, supporting activists and journalists who expose global corruption, and more.
Partner Liz Goldberg spoke to Pensions & Investments about the Department of Labor's Employee Benefits Security Administration (EBSA) and its focus on missing participant enforcement actions.
In Power magazine, partner Levi McAllister writes about how the Infrastructure Investment and Jobs Act could impact the future of electric cars—including the act’s $7.5 billion funding earmarked for building a national network for electric vehicle (EV) charging stations and the establishment of a 25-member EV working group.
Associate Alana Genderson spoke with HR Magazine about how employers can accurately assess employee numbers in the wake of the contested Occupational Safety and Health Administration (OSHA) emergency temporary standard (ETS), which applies to companies with more than 100 employees.
Morgan Lewis has been named among the top firms in North America for Innovation in New Solutions by Financial Times. The annual North America Innovative Lawyers special report cited the firm’s expansion of its COVID-19 task force model to provide guidance on the Biden-Harris administration, corporate sustainability, climate change and ESG, and racial justice.
Partner Ignacio Sandoval spoke with Global Risk Regulator about a recent report on stablecoins from the President’s Working Group on Financial Markets, Federal Deposit Insurance Corporation (FDIC), and Office of the Comptroller of the Currency, which lays out a list of associated risks and recommendations—including that stablecoin issuers should be overseen by the FDIC.
According to a recent report from the Department of Health and Human Services, since the start of the pandemic sweeping policy changes made by the Centers for Medicare and Medicaid Services have led to a surge in virtual doctor visits.
In Law360, partners Steven Johnson, Jonathan Zimmerman, and Handy Hevener, along with associates Anna Pomykala and Jacob Oksman, outlined key components of the Coronavirus Aid Relief and Economic Security (CARES) Act’s complex repayment rules for employer-share Social Security tax deferrals.
In an interview with Healthcare Risk Management, partner Kathleen McDermott opined that the DOJ is making clear it is implementing the FCA—and particularly the whistleblower provisions—in its fight against cyber threats, forcing healthcare entities to use the necessary safeguards and ensure they only work with vendors who do the same.
Partners Handy Hevener and Steven Johnson discussed with Law360 why they’re grateful for Internal Revenue Code Section 139.
Associate Daniel Kadish spoke with Forbes about best practices employers can employ when asking employees about their vaccination status.
In a George Mason University SCIF blog post cited by Law360, partner Kenneth Nunnenkamp discusses the limits of the President’s national security tariff power under the Trade Expansion Act as it is called into question by a new petition for US Supreme Court review.
Partner Jeremy Esterkin co-authored an article for Chemical Watch on the Environmental Protection Agency’s new Toxic Substances Control Act rule, which will require manufacturers, producers, and importers of per- and polyfluoroalkyl substances (PFASs) to submit at least a decade of retrospective reporting on PFAS usage.
Partner Michael Puma told HR Magazine that employers are seeing an influx of religious accommodation requests in light of COVID-19 vaccination requirements.
Partner Cosimo Zavaglia spoke about the looming impacts of remote work at the Tax Executives Institute and San Jose State University’s High Tech Tax Institute annual conference, which was covered by Bloomberg Law.
Associate Alana Genderson spoke with HR Dive about the Occupational Safety and Health Administration’s (OSHA’s) emergency temporary standard (ETS) requiring some employers to implement COVID-19 vaccine mandates or testing requirements by January 4.
Partner John Pease spoke with CFO Dive about the Department of Justice’s recently announced Corporate Crime Advisory Group, which will increase resources against corporate crime and focus on recidivism by considering all of a company’s past criminal, civil, or regulatory infractions when looking at a prosecution. John said that while the move appears to target bad corporate cultures, some business could feel like self-reporting will “open a can of worms.”
Associate Alana Genderson spoke to Law360 about the Occupational Safety and Health Administration’s new emergency temporary standard requiring private sector employers with 100 or more employees to set up a plan by December 5 to comply with vaccination or testing protocols.
Associate Mark Fanelli spoke to Reuters about the legal challenges that municipalities are facing in light of the increased use of electric scooters and similar modes of transportation.
Partner Julie Stapel spoke with Pensions & Investments about the US Department of Labor’s (DOL’s) recent proposal on environmental, social, and governance (ESG) investing, which would permit retirement plan fiduciaries to consider climate change and other ESG factors when selecting investments and exercising shareholder rights.
Partners Elizabeth Goldberg, Julie Stapel, Lance Dial, Michael Richman, and Marla Kreindler, along with law clerk Rachel Mann, authored an article for Law360 on the US Department of Labor’s recent proposed rulemaking on how retirement plans can make investment decisions that consider environmental, social, and governance (ESG) factors.
Partner Stephanie Feingold told Bloomberg Law that while it could be years before the Environmental Protection Agency publishes final rules of what constitutes safe PFAS—or “forever chemical”—levels, if an eventual regulation includes manufactured goods, it will apply to “about every manufacturing industry.”
Partner Neeraj Arora spoke with The Bond Buyer Podcast about the trends and risks in energy storage and its continued growth during the pandemic.
Partner Julie Stapel spoke with Law360 about a new US Department of Labor proposal that could break down some Trump-era barriers that discouraged ESG investing by employee retirement funds.
Partner Daniel Tehrani spoke with National Law Journal about the US Department of Justice’s new enforcement team tasked with investigating and prosecuting criminal cases involving cryptocurrency, as well as growing the department’s knowledge about this rapidly evolving industry.
Partner Elizabeth Goldberg spoke with Bloomberg Law about a proposed regulation from the US Department of Labor (DOL), which states that fiduciaries’ duty of prudence “may often require” consideration of the economic effects of climate change.
Partner Ryan McCarthy told Law.com that government contractors can expect an uptick in whistleblower allegations related to cybersecurity following the US Department of Justice’s announcement of a new initiative that would use the False Claims Act to target cybersecurity-related fraud by these contractors and grant recipients.
Partner Reece Hirsch joined the Berkeley Center for Law and Technology’s (BCLT’s) Expert Series podcast to discuss the Data Protection Act of 2021.
Associate Alana Genderson spoke with NPR about the factors employers must weigh when granting religious exemptions to the COVID-19 vaccine mandate.
Partner Stephanie Feingold discussed the US Environmental Protection Agency's pending requirement that companies report their use of so-called “forever chemicals” in Law360.
The Health and Human Services Department announced in early September $8.5 billion in COVID-19 stimulus funding to rural healthcare providers—however, eligibility hinges on whether the patients are rural, not the providers. The grants are part of the American Rescue Plan (ARP), a sweeping, $1.9 trillion pandemic relief package Congress approved in early 2021.
Partner Duke McCall discussed a congressional plan to revive a decades-dormant tax on chemicals and possibly on crude oil with Law360.
Partner Neeraj Arora spoke with Law360 about a Congressional proposal that would provide for significant clean energy tax credits.
Partner Thomas Linguanti spoke with Law360 about the results of a pilot program run by the Internal Revenue Services (IRS) that invited greater participation from compliance personnel in the appeals process.
As part of our Spotlight series, we connect with Jeff Boujoukos, the leader of Morgan Lewis’s securities enforcement practice, to discuss the current and future state of affairs of the regulation and enforcement activities of the US Securities and Exchange Commission (SEC) regarding cryptocurrency and initial coin offerings. Jeff points to recent cases and statements that may impact and shape the cryptocurrency market going forward.
Weeks of intense lobbying efforts from the cryptocurrency industry were spurred by a provision included in the Infrastructure Investment and Jobs Act about cryptocurrency reporting requirements.
Chapter 11 plans of reorganization provide creditors with recoveries (cash or new securities) in exchange for a release and discharge of all claims against the debtor. Many Chapter 11 plans go a step further to release claims against related entities and persons who are not debtors in the case. Members of Congress have recently proposed legislation that could prohibit such nonconsensual third-party releases.
Partner Harry Johnson spoke with Law360 about a memo released by the National Labor Relations Board (Board) general counsel outlining her priorities. Harry spoke about the potential impact of the Board’s general counsel seeking more injunctions under Section 10(j) of the National Labor Relations Act, which authorizes the Board to seek temporary injunctions against employers and while the case is being litigated before the Board.
As further guidance and regulations are proposed and begin to take shape with respect to relationships between banking organizations and third parties, including those in the fintech industry, our multidisciplinary teams here at Morgan Lewis are tracking each development. In July, shortly after the three federal banking agencies (the Federal Reserve Board, the Federal Deposit Insurance Corporation, and the Office of the Comptroller of the Currency) released their proposed risk management guidance regarding third-party relationships, our banking and financial services team provided a general overview highlighting the key takeaways from the proposal. If you have any specific questions, please reach out to your Morgan Lewis team for assistance.
Partner Levi McAllister authored an article for Law360 detailing the Biden-Harris administration’s recent executive order in support of electric vehicles and the Senate-approved infrastructure bill that earmarks funds for the development of more zero-emission transportation.
Partner Harry Johnson spoke with Daily Journal about potential priorities under the National Labor Relations Board, drawing from a recent memo released by its general counsel. The memo is “providing an avenue for the board to jump into a new area of the law that was settled, and recreating the legal doctrines,” Harry said.
Partner Matt Hawes was quoted by Plan Sponsor about recent US Department of Labor (DOL) guidance for plan sponsors on how to address uncashed distribution checks.
Partner Phil Miscimarra spoke with Law360 about the potential for continued rulemaking under the National Labor Relations Board, which will soon be led by a Democratic majority under the Biden-Harris administration.
Morgan Lewis partner Sarah-Jane Morin was interviewed by Law360 about the US Senate’s $1.2 trillion infrastructure bill that included a “controversial measure” that could have major implications for the cryptocurrency industry through reporting requirements for brokers in the digital asset space.
Leader of the firm’s international trade and national security practice Giovanna Cinelli discussed a recently announced initiative by the Biden-Harris administration focused on fighting corruption in Northern Triangle countries for national security reasons.
Partner Levi McAllister spoke with Law360 about an executive order from the Biden-Harris administration that set ambitious goals for electric vehicles.
Partners Sarah-Jane Morin and Tom Linguanti drafted an article for Bloomberg Tax about recent IRS attention to high-net-worth individuals, including athletes.
Partners Miranda Lindl O'Connell and Carl Valenstein spoke with Pensions & Investments about the US Securities and Exchange Commission's recent attention on climate-risk disclosure.
Partner Sharon Perley Masling spoke with CNBC about the potential impact of the Biden-Harris vaccine mandate for civilian federal workers on private business leaders.
Partners Ella Foley Gannon and Neeraj Arora co-authored a Reuters article regarding the Biden-Harris administration’s ambitious approach to climate policy in its first 100 days.
Partner Ella Foley Gannon was quoted by Law360 after the Biden-Harris administration released plans to lease federal waters in California to an offshore wind project.
Partners Matthew Hawes and Elizabeth Goldberg provided their insights to PlanSponsor regarding the US Department of Labor’s (DOL’s) release of its first cybersecurity guide for ERISA plans. Under the new guidelines, the DOL indicates that protecting participant information is a fiduciary issue and that plans have a responsibility to address them.
Morgan Lewis partner Daniel Skees spoke to E&E News about how President Biden’s executive order, which is aimed at strengthening US cybersecurity defenses, will affect the energy industry. Dan noted that an upcoming guidance on enhancing supply chain security and improving cloud services could have a significant trend-setting impact on the private sector.
Morgan Lewis partners Susan Harthill, Elizabeth Goldberg, and Eleanor Pelta authored an article for International Employment Lawyer about early policy changes from the Biden-Harris administration that affect the workplace, including actions addressing multi-employer plans, diversity training, and immigration laws.
Partners Bill Kissinger, Ella Foley Gannon, and Rick Rothman authored an article for Law360 about recent US regulatory and legislative developments addressing climate change and renewable energy.
Partner Eleanor Pelta spoke to Bloomberg Law about the H-1B visa program, which saw record filings for the 2022 lottery.
Morgan Lewis partners Elizabeth Goldberg and Matthew Hawes provided insight to Pensions & Investments about the DOL’s new cybersecurity guidance to retirement plan sponsors and fiduciaries.
A recent Investment News article referenced a Morgan Lewis LawFlash, which discussed the US Department of Labor’s issuance of three pieces of subregulatory guidance addressing the cybersecurity practices of retirement plan sponsors, vendors, and plan participants.
Partners Kirstin Gibbs and Ella Foley Gannon were quoted by Law360 in an article about the new US presidential administration’s efforts toward tackling climate change.
Partner Levi McAllister authored a Law360 article about the threshold issues of which market participants affected by electric vehicle (EV) penetration should be aware. In the piece, Levi discussed current growth trends and projections, the Biden-Harris administration’s agenda related to EVs, and practical issues in the sector.
Partner Randy McGeorge spoke with Bloomberg Law about the financial assistance for union-brokered pensions included in the Biden-Harris administration’s COVID-19 relief package. The funds are only available through 2051, so Randy said in the article, “what the law does is not provide a permanent bailout but, rather, kicks the can down the road on these existing issues for about 30 years.”
Partner Eleanor Pelta spoke with International Employment Lawyer about the Biden-Harris administration’s decision to allow the Trump-era “wealth test” order to lapse.
Partner Jeff Boujoukos was quoted in a Board IQ article about the prospect of mutual funds being allowed to directly invest in cryptocurrency under the new potential leadership of the US Securities and Exchange Commission (SEC).
Partner Ella Foley Gannon was quoted in a Utility Dive article about the Biden-Harris administration’s $2 trillion infrastructure plan proposal in relation to California. In the piece, she discussed the state’s zero-carbon electricity goals: “Even before some of this gets played out through actual legislation at the federal level, this focus, I think, will dovetail nicely with California’s articulated goals—and hopefully, will incentivize more investment.”
Partner Eleanor Pelta spoke with Law360 about the Biden-Harris administration’s decision to permit individuals to reapply if they were denied H-1B, H-2B, J, and L temporary visas under the Trump administration.
A LawFlash authored by partners Susan Harthill and Russell Bruch and associate Elizabeth Johnston was cited in an EHS Today article about the Biden-Harris administration’s Department of Labor (DOL) and potential actions regarding independent contractor and joint employment issues. The LawFlash details the DOL’s proposal to eliminate the Trump era’s two signature rules regarding the issue.
In a recent Law360 article, partner Eleanor Pelta discussed the expiration of the Trump administration’s Proclamation 10052 and the benefits the expiration presents multinational companies. "
Partner James Tynion spoke with Law360 for an article about the Biden-Harris administration’s proposed $2 trillion infrastructure plan. In the piece, he explained the implications of the tax credit expansions on transmission investment tax credits (ITC).
Morgan Lewis partner Eleanor Pelta was quoted in a Bloomberg Law article about the visa application backlog caused by the COVID-19 pandemic. In the piece, she discussed the economic ramifications.
Morgan Lewis partner Elizabeth Goldberg spoke with Pensions & Investments after the US Department of Labor (DOL) announced it will not enforce the “Financial Factors in Selecting Plan Investments” rule and “Fiduciary Duties Regarding Proxy Voting and Shareholder Rights” rule or take enforcement action against ERISA fiduciaries until it publishes further guidance.
Morgan Lewis partner Jonathan Zimmerman spoke with Law360 about the new COBRA subsidies introduced by the American Rescue Plan Act (ARPA). The passage of ARPA means that eligible employees who were laid off or had a reduction in hours as a result of COVID-19 can stay on their workplaces health plans for free within the extended 18 months of coverage from COBRA.
Partner Dennis Gucciardo was quoted in a MedTech Dive article about the outlook for the US Food and Drug Administration (FDA) under the Biden administration. Dennis noted that companies can expect an increase in “for cause” FDA inspections. "Under the Trump administration, we didn't really see that kind of activity unless there was a public health threat," he said.
Of counsel Sage Fattahian was quoted in an HR Magazine article about the implications of the American Rescue Plan Act of 2021 for employers.
Morgan Lewis partner Eleanor Pelta’s pro bono representation of advocacy groups opposed to the Trump administration’s immigration-related “wealth test” was highlighted in a recent NJ Today article.
Morgan Lewis partner Eleanor Pelta was quoted in an International Employment Lawyer article about the Biden administration’s decision not to defend a Trump era “public charge” policy before the US Supreme Court. The rule allowed for education, English-language skills, and current wealth to be considered when determining an individual’s eligibility for residency.
Partner Dennis Gucciardo spoke with BioWorld about the hurdles medtech companies will likely face while converting their emergency use authorizations (EUAs) to conventional premarket filings.
A blog post authored by partner Elizabeth Goldberg and associate Lauren Sullivan was cited in an HR Magazine article about the US Department of Labor’s (DOL’s) decision to not enforce a Trump administration guideline that limited the use of environmental, social, and governance (ESG) criteria when selecting retirement plan investments.
Morgan Lewis senior director Tim Lynch spoke with Law360 for an article about the American Rescue Plan’s implications for union pension plans.
Associate Emily Cuneo DeSmedt spoke with HR Magazine about the recently reintroduced Pregnant Workers Fairness Act, which could update required accommodations for pregnant workers. The bill was reintroduced in the US House of Representatives in February, and if it passes, “employers would need to amend their existing reasonable accommodation policies to clarify that they apply to employees who are pregnant, have pregnancy-related conditions or have recently given birth,” said Emily.
Morgan Lewis senior director Tim Lynch discussed the possibility of including a union-related pension funding issue in the final draft of the American Rescue Plan with Law360.
Partner Jonathan Snare spoke with Law360 about new guidance from the Occupational Safety and Health Administration (OSHA) that requires vaccinated workers to continue to wear masks and take other measures to prevent the spread of COVID-19.
Senior director Timothy Lynch spoke with Law360 about potential legislative changes to union pension plans. “Clearly, with the Democratic control in the Senate, that makes it a lot easier," said Tim in the article.
Partner Eleanor Pelta spoke with The Harvard Crimson about the potential implications of the Biden administration’s immigration policies on higher education.
Partner Saghi Fattahian and associate Lindsay Goodman were quoted in an SHRM article about the Mental Health Parity and Addiction Equity Act (MHPAEA) compliance requirements under the 2021 Consolidated Appropriations Act, which was enacted on December 27.
Partners David Monteiro, Robin Nunn, and Rebecca Hillyer were quoted in a Compliance Week article about consumer protection initiatives, which are expected to be a major area of focus under the incoming Biden administration.
Senior Director of Morgan Lewis’s Washington Strategic Government Relations and Counseling Practice Timothy Lynch spoke with Law360 about the union pension issues the US Congress and incoming Biden administration are expected to address in 2021.
Morgan Lewis partner Sharon Perley Masling spoke with Bloomberg Law about the legal questions for employers around mandating the COVID-19 vaccine. “Whether to mandate the vaccine is obviously an industry-by-industry and employer-by-employer decision,” said Sharon. “In most cases, however, our clients are deciding to strongly encourage their employees to get the vaccine rather than require them to do so while the vaccine is under an EUA.”
In this NSI Live podcast addressing the findings and recommendations of the US Congress’s US-China Economic and Security Review Commission Annual Report, partner Giovanna Cinelli, leader of Morgan Lewis’s international trade and national security practice and National Security Institute (NSI) fellow, discussed how the US-China relationship may evolve or stay the same under President-elect Joseph Biden’s administration.
Partner Jonathan Snare and associate Alana Genderson spoke with HR Magazine for an article about what employers may expect regarding enforcement by the Occupational Safety and Health Administration (OSHA) under a Biden administration.
Partner Elizabeth Goldberg spoke with Pensions & Investments about the US Department of Labor’s (DOL’s) Employee Benefits Security Administration focus on environmental, social, and governance (ESG) enforcement.
Morgan Lewis partner Jeffrey Boujoukos spoke with Law360 for an article about the likely impact of the COVID-19 pandemic and a Biden administration on the US Securities and Exchange Commission’s (SEC’s) enforcement priorities.
Here’s what we know: After the November 3 US election, the Biden-Harris ticket has 290 electoral votes, 20 more than what is needed to win (with one state, Georgia, undecided). Senate Republicans hold a two-seat advantage (50-48) with the two Georgia seats undecided, and House Democrats maintain control with a current advantage of 221-205 (218 is needed to retain the majority) and 9 races undecided.
Morgan Lewis partner Douglas Baruch was quoted in a Bloomberg Law article following the announcement that the 2018 policy on whistleblower case dismissals, known as the Granston memorandum, would continue under the incoming presidential administration.
Partner John McGahren spoke with Law360 for an article about what a Biden administration may mean for environmental policy.
Many companies are preparing for a shift in priorities under a Biden-Harris administration, despite some lingering uncertainty over the fate of the US election, including the makeup of Congress and the official confirmation of a new president. To help with that preparation, Morgan Lewis assembled a group of former government officials to explain what happens now, what could happen after January 20, and what companies around the world should be doing.
Partner Julie Stapel spoke with Pensions & Investments about the potential implications of a Biden administration on recent proposals from the US Department of Labor (DOL) related to the ERISA fiduciary rule. Julie noted that the current proposal for the fiduciary rule "gets close enough to what the more liberal thinkers at the DOL were hoping for."
Morgan Lewis partner and co-leader of the firm’s privacy and cybersecurity practice Reece Hirsch spoke with Politico about potential changes the Biden administration might bring to the digital health landscape.