Advisories

 CHALLENGES FACING THE CONSTRUCTION INDUSTRY IN 2023

The construction industry has enjoyed strong growth during the past several years and it continues to be an interesting time for small and medium sized companies. Infrastructure projects have increased significantly due to funding by Congress, and although… READ MORE

One of the most important steps to be taken after an investment has been made in a start-up company is to develop a leadership structure that will take the company to the next level. A new board of directors should be established and board governance policies implemented. Investors will want oversight and the opportunity to measure overall performance of the company. In addition, the directors will be responsible for addressing capitalization issues… READ MORE

SEC ADOPTS A NEW DEFINITION OF “ACCREDITED INVESTOR”

On August 26, 2020, the Securities and Exchange Commission (the “SEC”) adopted amendments to the definition of “accredited investor.” The amendments permit investors to qualify as accredited investors based upon additional criteria focused on financial sophistication, in addition to the historic tests relating to their income or net worth. The amendments become effective sixty (60) days after publication in the Federal Register…. READ MORE

NAVIGATING DUE DILIGENCE PLANNING AND EQUITY FINANCING

When contemplating making an investment in a newly formed company, due diligence must be performed both by and for the investor. Notwithstanding, the entrepreneur will also benefit from this process and should create their own due diligence plan so they are prepared to answer the difficult financial and operational questions that will be asked by the investor…. READ MORE

U.S. SUPREME COURT OPENS THE DOOR TO “GENERIC.COM” TRADEMARKS

Booking.com, an on-line travel agency that books hotel reservations and provides other services to customers, filed an application with the U.S. Patent and Trademark Office (the “USPTO”) to register the trademark “Booking.com.” The application was rejected based on the well-established principle that generic terms are not subject to trade mark… READ MORE

COURTS START TO WEIGH IN ON COVID-19 LAWSUITS

We recently issued an advisory about the forthcoming explosion of lawsuits arising out of the coronavirus pandemic. Specifically, we discussed the legal concept of “force majeure,” which refers to a party’s ability to be excused from performing their obligations in a contract based upon so-called “acts of God” or unforeseen circumstances… READ MORE

KEYS TO CREATING A SUCCESSFUL SUCCESSION PLAN FOR CLOSELY HELD BUSINESSES

Entrepreneurs possess unique characteristics and talents that they apply to create a new business, including being comfortable taking risks in order to bring into existence new products or services… READ MORE

HOW WILL THE CORONAVIRUS IMPACT YOUR CONTRACTS?

The coronavirus pandemic is unprecedented in our modern history and economy. Because so much of our business world revolves around contracts and the terms that parties use to make their agreements, the words they use matter. Two of those words that are becoming increasingly important … READ MORE

ENHANCED BANKRUPTCY OPTIONS FOR SMALL BUSINESSES UNDER THE CARES ACT

With little fanfare, the Bankruptcy Code received its first major revision in 15 years in February 2020. This new revision – called “Subchapter V” – is primarily designed to make it easier for qualified small businesses with total secured and unsecured debt of up to… READ MORE

The Pros and Cons of Representation and Warranty Insurance in Merger and Acquisition Transactions

Representation and warranty insurance (“RWI”) has been around for some time. Historically, it was most commonly used in large transactions, often involving publicly traded companies. However, in recent years it has become much more common in… READ MORE

What Is “Shadow Preferred Stock” and When Should It Be Used?

The use of convertible promissory notes or, in recent years, “SAFEs” – Simple Agreements for Future Equity – have been common structures used by early stage companies to raise seed capital… READ MORE

What Investors and Developers Should Know About Opportunity Funds

Opportunity Zone (“OZ”) investments were sanctioned by changes to the Internal Revenue Code included in the Tax Cuts and Jobs Act of 2017 (See IRC section 1400Z-2). The purpose was to encourage investment in economically depressed areas by providing investors with …. READ MORE

Artificial Intelligence – What The Developing Landscape Means For Your Business

The Artificial Intelligence (“AI”) industry is rapidly emerging as one of the most interesting new advancements likely to impact a broad array of industries. AI is well beyond the nascent stages of development, and is quickly taking center stage as a gateway profit maximizer for forward-thinking business leaders. In short, AI has arrived… READ MORE

Business Succession Planning Is Not “One Size Fits All”

Succession planning has different meanings depending upon whether one is referring to a change in ownership of a business, transfer of an estate o developing a management team to take over for an owner desirous of retiring. In the business context, succession planning is not limited to the preparation of wills and trusts in an estate plan or providing equity compensation to key employees… READ MORE

Municipal Barriers to Cannabis Enterprises

The nation’s burgeoning patchwork of state cannabis industries are arguably the most heavily regulated industries in the land. While most investors and aspiring operators have a certain level of awareness regarding the complexities that await them in compliance with state-specific regulations, many overlook the gating issues that exist in the arena of municipal compliance… READ MORE

Pros And Cons Of LLCS Electing S Corporation Status

An S corporation is a business corporation (or more recently, an LLC or partnership) organized under state law that elects to be treated, for income tax purposes, as a so-called “S corporation,” under Subchapter S of the Internal Revenue Code. S corporations have been around for over 60 years. They were enacted primarily to assist small business owners by permitting them the benefits of operating as a corporation (less personal liability, etc.) and at the same time avoiding double income tax on business profits… READ MORE

New Massachusetts Law Limiting Employee Non-Compete Agreements

After numerous failed attempts, the Massachusetts legislature has finally passed a new law limiting non-compete agreements between a company and its employees and independent contractors. The legislation was signed into law by Massachusetts Governor Charlie Banker on August 10, 2018. It becomes effective on October 1, 2018… READ MORE

Succession Planning And The Family Limited Partnership Solution

Representing closely held family businesses often involves counseling the founders with regard to developing a succession plan that involves the children. The potential transfer of power and authority within a family business is one of the greatest concerns of the owners. “Having your cake and eating it too” is the general theme of the founder who does not want to squander family assets or give up control of the enterprise. One solution and consideration to this dilemma is transferring minority ownership and retaining control through the use of a family limited partnership (“FLP”)… READ MORE

New Rules Governing IRS Audits Of Tax Partnerships

Effective January 1, 2018, the IRS has made significant changes in the rules applicable to audits of entities treated as partnerships for tax purposes. This includes both general and limited partnerships as well as many limited liability companies… READ MORE

Family Business Disputes… Like An Awkward Thanksgiving?

Family gatherings at Thanksgiving often bring a mix of emotions: happiness at being re-united with loved ones who may live far away, but also sometimes stress over strained family relationships caused by a myriad of reasons… READ MORE

Will the CEO See the Crisis Coming? Or, What Do Wells Fargo, United Airlines and Uber Have in Common?

The daily news is filled with reports of corporate clumsiness and misdeeds, whether affecting employees or customers, or violations of law or societal norms, that threaten the goodwill and value of the companies involved. Why do such blunders occur, and how should company leadership both prevent the likelihood of such occurrences and respond when a crisis arises?… READ MORE

Convertible Notes, “Safes” and “Kisses”: A Primer for Early Stage Companies Seeking Outside Investors

It is a rare company that can fund its growth using only internal cash flow. Start-ups and early stage companies can be particularly challenged because they often do not have access to either bank financing or venture capital since both sources typically require several years of positive operating results before a company becomes a viable candidate for either… READ MORE

Planning to Sell Your Company? The Pros and Cons of Asset Sales, Stock Sales and Mergers

Once you decide to sell your company and identify a potential buyer, one of the many issues you will have to negotiate with the buyer is how the sale will be structured. The most common structures are a sale of assets, a sale of stock or a merger. Before you get into a negotiation of structure, it is important to understand the pros and cons of each… READ MORE

Medical Franchising: A Practice Model for the Millennium

Physician satisfaction is at a low-point, with one-third of family physicians and over half of certain specialists saying they would not choose to become doctors again if given a second chance.1 Shrinking reimbursements and a fifteen-minute patient encounter spent typing into the electronic medical record have turned the old-fashioned physician-patient relationship into a distant memory. Further, those practitioners who have sought relief from large, hospital based practices or accountable care organizations have often found themselves just as pressured by their new RVU compensation models, by quality metrics that often do not reflect the latest research, and by the ethical dilemmas present in systems where care-management eligibility is based upon the patient’s payment model… READ MORE

Shareholder Demands for Confidential Company Information

What Are The Company’s Rights And Obligations? Public companies are required to provide, on a regular basis, extensive information about their businesses and financial condition. All of that information is readily available to shareholders and others. Conversely, similar information regarding private companies is generally not available, even to its shareholders. For that reason, the laws of virtually every state give private company shareholders limited rights to receive non-public information regarding a private company in which they own an equity interest… READ MORE

The Pros & Cons of Dual Class Stock Structures

A so-called “dual class stock” structure is a tried and true method of ensuring that a group of shareholders (usually insiders, such as all or some of the founders, senior management or early investors in the company) maintain voting power that is disproportionate to their economic interest in the company… READ MORE

New Massachusetts Law Mandates Equal Pay For Comparable Work

Massachusetts Governor Charlie Baker recently signed into law a new Massachusetts statute designed to ensure that male and female employees are paid equally for comparable work. However, the new statute does not become effective until July 1, 2018. The so-called “Act to Establish Pay Equality” (the “Act”) has both a laudable purpose and the potential to create a compliance nightmare for employers… READ MORE

Death, Disability and the Closely-Held Business

Our financial life has many stages involving shorthand long-term goals. An attorney, like any other business owner, devotes considerable energy and resources to creating and growing their business. This process does not end until retirement… READ MORE

Planning for the Next Step in the Family Business

During the course of my career, I have represented family businesses of all shapes and sizes. It is an accepted fact that 95% of the businesses in the US are family owned and in many cases survive into two or more generations… READ MORE

Common Mistakes by Private Companies

Legal issues arise for every business. Typically, privately owned companies do not have in-house counsel. To avoid expensive legal problems before they occur, wise business owners conduct thorough periodic reviews of policies and practices to identity and address areas that need improvement… READ MORE

HELP WANTED: SHORTAGE OF CYBERSECURITY EXPERTS POSES CHALLENGES AND RISKS

If I was a parent of a first-year college student who was undecided in what major to declare, I’d firmly nudge him or her to consider going into nursing/healthcare studies or computer science/programming. Given the poor state of our global health and rapidly increasing cybersecurity risks and growth of artificial intelligence, both of these fields have limitless opportunities and growth potential…. READ MORE

Why Cyber Insurance is Not Enough

In case the title of this article creates any ambiguity, let that be resolved right away: cyber insurance is a good idea. Cyber breaches are an undeniable part of 21st century reality, and any business thinking that a robust Privacy and Security program will automatically shield it from a sanctionable event is engaging in a legal strategy known since Roman times as pium desiderium. Wishful thinking… READ MORE

The Real Risk Of GDPR Non-Compliance In Your Organization

American businesses, as a whole, are far behind their European counterparts in the extent of their compliance with GDPR, the European Union’s General Data Protection Regulation. One of the most common reasons for this is also one of the most natural: it simply flies in the face of many Americans that their domestic activities might be governed by some European regulation. We did, after all, fight a war about a similar “taxation without representation” issue some 240 years ago… READ MORE

The Danger Of A WISP

For businesses that maintain data on customers or, increasingly, their own employees, the term “WISP” should be familiar. A WISP, or Written Information Security Program, is the document by which an entity spells out the administrative, technical and physical safeguards by which it protects the privacy of the personally identifiable information it stores… READ MORE

Prioritizing Cybersecurity

Lawyers today face enormous pressure in real time to adopt new technologies and those who do not may find it difficult to satisfy clients who expect immediate and continuous access to their attorney. The rules of professional conduct impose a duty on lawyers to provide competent representation, and the term “competence” would include at least a working familiarity with the technology that makes up much of the fabric of the clients’ day-to-day lives from a personal and professional perspective… READ MORE

What’s In A Name? Considerations When Choosing A DBA For Your Organization

Nonprofit organizations sometimes find that changing missions or a desire for a more updated image fosters consideration of a change in the entity’s name. There are two options if you wish to alter your nonprofit’s name. The nonprofit can legally change its name by amending its founding document (the articles of incorporation). Alternatively, the organization can use a “DBA.” DBA stands for “doing business as,” and it is often referred to as a “fictitious” or “assumed” name….READ MORE

The For-Profit Subsidiary as a Strategy for the Nonprofit

Leadership in nonprofit organizations are challenged to find alternate strategies to generate revenue to support their mission, which have traditionally included fundraising and grants. The sources of income are shrinking for these categories making it ever more critical for leadership to think outside the traditional forms of third-party financial support…READ MORE

Analysis of a Tax-Exempt Nonprofit Organization

Tax-exempt organizations exist for purposes recognized by federal law to fill a need not otherwise provided by government in the areas of charitable, educational, scientific and literary. The restrictions on revenue and profit for tax-exempt organizations are designed to maintain an even playing field with for-profit organizations while providing an opportunity to sustain the existence of nonprofits… READ MORE

Best Practices Checklist for Effective Nonprofit Management

The board of trustees of a nonprofit organization has a fiduciary responsibility relating to policies, procedures and governance matters. The organization should conduct an annual review of its mission statement, structure, compliance policies, and financial viability in order to confirm that the business operation is being conducted in a manner consistent with the mission statement of the organization, as well as State and Federal law… READ MORE

Fiduciary Duties for the Board Member of a Nonprofit Organization

In Rhode Island as in most jurisdictions, board members for nonprofit organizations have broad oversight authority and they have the ability to directly impact policies for governance, financial matters and the strategic planning of their organization… READ MORE

First it was Enron …Then Big Banks …. Is the Nonprofit Next?

It has been more than a decade since the American Competitiveness and Corporate Accountability Act of 2002 (“Sarbanes-Oxley Act”) was signed into law and we have now had another recession caused in large part by irresponsible lending by banks. It was the same type of actions by Enron, Tyco, WorldCom and others that changed the corporate regulatory landscape forever; however, we seem to continue the trend of pushing the envelope in terms of transparency… READ MORE

DANGER LURKS WITH INCENTIVE-BASED SALES STRATEGIES FOR HEALTH IT PLATFORMS

A wise person learns from the mistakes of others; and recently, the health IT industry was afforded such a learning opportunity by a well-known EHR platform. athenahealth, Inc. (Athena), an industry-leading EHR vendor, agreed to pay $18.25 million to resolve allegations… READ MORE

Project Nightingale and the Take-Away Lesson for Providers And Payors

There has been much ado lately about a newly-revealed joint venture between Ascension Medical Group and Google. Ascension is the nation’s largest non-profit health care system; Ascension Medical Group is the company’s subsidiary physician group, with facilities in more than twenty states. Google is, well, Google. The joint venture… READ MORE

Opting Out: The Ultimate MACRA Alternative

If yours is one of the small clinical practices with less than $30,000 in Medicare revenue or fewer than 100 unique Medicare patients per year, October 2nd, 2017 will be just another Monday for you. However, for most Medicare-participating healthcare practitioners, October 2nd will mark the day that their practice becomes subject to significant reporting requirements and financial risk under the Quality Payment Program of the Medicare Access and CHIP Reauthorization Act of 2015 (“MACRA”)… READ MORE

Challenges for Nursing Homes

Nursing home owners are significantly challenged to remain in compliance with federal and state regulations regarding resident care, admission and reimbursement. They must make certain they are in compliance with federal and state regulations… READ MORE

Cybersecurity and Health Care

According to the U.S. Department of Health & Human Services Office of Civil Rights, during the first six months of 2015 more than 94 million individuals were subject to security breaches at health care organizations… READ MORE

Chronic Care Management by Federally Qualified Health Centers

Beginning on January 1, 2016, the Centers for Medicare and Medicaid Services will reimburse Federally Qualified Health Centers for non face-to-face Chronic Care Management (“CCM”) services… READ MORE

Advanced Care Planning

Beginning on January 1, 2016, the Centers for Medicare and Medicaid Services will reimburse physicians and non-physician practitioners for certain Advanced Care Planning (“ACP”) services… READ MORE

PLDO Criminal Defense Attorneys Obtain Deferred Prosecution Agreement for Health Care Organization – First in the Nation

A Rhode Island Hospital and several of its key personnel were indicted by a grand jury on criminal charges of conspiracy and scheming to defraud the State of Rhode Island and its citizens. The charges stemmed from a federal investigation into the executive directors’ hiring of a part-time consultant to purportedly promote the activities of a corporation affiliated with the Hospital. The issue was that the part-time consultant was also a politician… READ MORE

Patient Engagement Results in Better Health and Lower Costs

Patient engagement and access to relevant data are essential to achieving the primary goals of the Affordable Care Act (ACA), which include better health and lower costs. Reducing emergency room visits and readmissions are critical to reducing the overall costs of healthcare and in theory, if an individual is involved in their own healthcare needs, has access to a primary care physician and current medical records the incident for admission to an emergency room should be extremely low. Achieving better health requires that the patient is armed with the right tools, technology and team… READ MORE

MAJOR RULING BY NLRB THREATENS ENFORCEABILITY OF SEVERANCE AGREEMENTS

A recent ruling by the National Labor Relations Board (NLRB) has declared that it is unlawful under federal law for employers to ask or require non-manager/non-supervisor employees who are being terminated to sign…READ MORE

RHODE ISLAND’S NEW WAGE LAW – ARE YOU READY?

Beginning on New Year’s Day 2023, Rhode Island employers will be subject to a new and sweeping law designed to promote pay equity and fairness in the workplace. This new pay equity law will have major implications on Rhode Island businesses and expose employers to substantial liability even where employers mistakenly or innocently violate the law’s requirements…READ MORE

CYBERSECURITY ENFORCEMENT RISKS FOR ERISA PLAN SPONSORS

Employers that sponsor ERISA retirement or health plans should anticipate the Department of Labor taking a more aggressive enforcement stance in regard to the cybersecurity of those plans. ERISA is enforced by DOL’s Employee Benefits Security Administration (“EBSA”). Recently, EBSA published new cybersecurity guidance for…READ MORE

U.S. DEPARTMENT OF LABOR PROPOSES NEW RULE ON INDEPENDENT CONTRACTORS

On September 22, 2020 the U.S. Department of Labor (the “DOL”) released a proposed regulation addressing when a service provider should be classified as an independent contractor rather than an employee. The DOL is soliciting comments to the proposed new rules for a thirty (30) day period following publication in the…READ MORE

Rights of Workers in the Burgeoning Gig Economy

A growing workforce of freelancers and independent contractors who have the freedom to decide on the duration and frequency of their work is changing the employer-employee relationship. The expanded population and earning capacity of “gig” workers is expected to continue and is now part of the 21st century “gig economy.”….READ MORE

New Rhode Island Law Requires Employers To Provide Paid Sick Leave

Rhode Island became the eighth state to pass a paid sick leave law. (R.I. Gen. Laws 28-57-1et seq). The law requires Rhode Island employers with 18 or more employees to provide paid sick and safe leave as of July 1, 2018. For employers with less than 18 employees, the law mandates that employers allow use of unpaid sick leave…READ MORE

Treasury Final Rule Provides More Flexibility To Local Governments In The Use Of American Rescue Plan Funds

In January 2022, the U.S. Department of Treasury issued the long-awaited Final Rule (FR) for the Coronavirus State and Local Fiscal Recovery Funds (SLFRF), which is a part of the American Rescue Plan. The SLFRF permits $350 billion to be allocated nationally—from which the State of Rhode Island will receive approximately $1.1 billion and local municipalities will be sharing….READ MORE

Local Government Must Be Cautious In The Use Of American Rescue Plan Funds

State and local government budgets throughout the country have been severely impacted by the COVID-19 pandemic. Government officials have been forced to make significant cuts in their budget, delay infrastructure projects, reduce spending for education and in many cases use their rainy-day funds to simply…..READ MORE

Establishing Rules Of Decorum In A Virtual Public Meeting World

Prior to the introduction of a virtual world caused by the COVID-19 pandemic, if you witnessed a city councilor popping open a beer, drinking it and then eating dinner while the council meeting was in session, your reaction likely would be bewilderment and outrage, and lead you to believe that the councilmember simply did not care enough to pay…..READ MORE

CHARITABLE REMAINDER TRUSTS – A WAY TO CONVERT APPRECIATED PROPERTY INTO AN INCOME STREAM FOR RETIREMENT AND MORE

Despite recent market volatility caused by the pandemic, war in Ukraine, and inflation fears, rarely in U.S. history have so many individuals owned so much highly appreciated property. A significant percentage of these assets are owned by those approaching retirement….READ MORE

DECANTING: AN OVERLOOKED TOOL IN THE TOOLKIT

There are many benefits to using an irrevocable trust in estate planning. Chief among them are tax savings and asset protection. However, many blanch at the thought of transferring assets into something so seemingly permanent as an irrevocable trust. You have worked hard your entire life amassing….READ MORE

IRREVOCABLE TRUSTS: TAKING CARE OF YOURSELF AND YOUR RETIREMENT

Many people do not consider protecting assets for future long-term-care costs until they, or their spouse, requires skilled nursing care. Others are aware of the high price of such care (in some cases more than $10,000 a month) but believe that they have saved enough in retirement to defray the cost…..READ MORE

End-Of-Year Tax Planning Tips and What You Should Know For 2020

As we approach the end of 2019, taxpayers need to be mindful to position themselves to minimize their state and federal income tax liability, which is due by April 15 of 2020. This is accomplished by accelerating deductions and deferring income….READ MORE

Establishing A Florida Domicile

An individual who establishes his or her domicile in Florida enjoys several benefits including no personal income tax, no capital gains tax, no state gift tax, and no state estate or inheritance tax. Further, Floridians enjoy asset protection in the form of strong state laws that exempt their homestead, retirement assets, insurance, and certain spousal joint property from being used to satisfy a creditor’s judgment against an individual…READ MORE

The Florida Homestead Advantage

Individuals have been flocking to Florida for years. So, what’s so great about Florida? It’s not just the weather. Individuals who establish their homestead in Florida enjoy the following benefits:…READ MORE

Why Your Domicile Is A Key Factor In Estate Planning

Having an up-to-date estate plan is important for many reasons, one of which is to ensure you have properly planned to minimize the federal and state estate tax. The federal estate tax exemption in 2019 is $11.4 million per person, or $22.8 million per married couple. Although many people do not need to be concerned about federal estate tax, there are 12 states that impose a state estate tax and six states that impose an inheritance tax. Maryland imposes both…READ MORE