White Collar Enforcers: “expect heightened scrutiny coming out of the COVID-19 crisis!”

One apparent certainty arising from COVID-19 is that prosecutors and regulators are preparing for a wave of enforcement matters when the pandemic slows down. White collar enforcers say they are pressing forward with investigations and enforcement actions during the COVID-19 crises while increasingly targeting pandemic-related actions. At a conference last month, Brian Rabbitt,  principal deputy assistant attorney general for the DOJ’s Criminal Division, and James McDonald,  enforcement director at the U.S. Commodity Futures Trading Commission, said that the companies and individuals should expect a groundswell of  investigations before the end of the year.

Thus, COVID-19-related cases are in the works, likely involving insider trading, market manipulation, accounting fraud, disclosure fraud, and valuation fraud or mismarking.

One area of expected heightened scrutiny during and resulting from the COVID-19 crisis is insider trading. Already, several U.S. senators have faced accusations of trading ahead of the  market declines caused by the pandemic, based on information gleaned from Senate hearings. Sen.  Richard Burr, R-N.C., last month stepped aside as chairman of the Intelligence Committee while an investigation into his stock trading played out.

Another issue for public companies is the disclosures they made during the
pandemic, given the widespread financial strains on businesses. There are suspicions that some corporate bankruptcy filings didn’t necessarily reflect the financial realities of the companies leading up to the pandemic. What appears certain however is that federal and state regulators are preparing for a wave of enforcement matters when the pandemic eases.

Companies and individuals are duly warned.  Using their legal and government affairs  advisors, potential targets of enforcement may be able to get ahead of the groundswell of cases and trials predicted toward the end of the year. Such mitigation efforts frequently involve taking remedial measures within a corporate compliance and ethics program, audits of the organization’s compliance with law, as well as proactively presenting audit findings to regulators to find safe harbors, thus avoiding costly and destructive enforcement actions and litigation.

 

NJEDA Program Offering $100,000 Working Capital Loans to Qualified New Jersey Small Businesses

On Monday, April 13, 2020, The New Jersey Economic Development Authority (“NJEDA”) will launch its Small Business Emergency Assistance Loan Program (the “SBEAL Program”). Mindful that NJEDA launched its Small Business Emergency Assistance Grant Program, that was oversubscribed in a few days, it is anticipated that SBEAL will too be quickly oversubscribed.

This alert summarizes the eligibility requirements and other key terms of loans under the SBEAL Program.

SBEAL Program in a Nutshell

$10 million (initial wave) program to provide no-to-low-interest capital loans to businesses with less than $5 million in revenue.

Eligibility – General
• $5 million or less in annual revenue
• physical commercial location in New Jersey
• minimum one year in existence
• must be registered to do business in New Jersey and be in tax good standing
• minimum global debt service coverage ratio of 1.0 based on the year prior to the declaration of emergency
• Department of Labor good standing
• minimum credit score of 600 for at least one guarantor
• proof of negative impact of emergency (e.g., closure, reduced hours, 20% revenue drop, etc.) on or after March 9, 2020

Cap; Term; Interest Rate
• up to $100,000
• 10-year term and amortization
• 12 months for deferred repayment
• 0% interest for years 1-5; 1-3% for years 6-10 The loan application can be accessed here.

Supporting Information and Documents
Business owners and potential borrowers are required to complete and submit their application online via the NJEDA portal. Business owners are requested to provide certain information and upload various supporting documents. We recommend that potentially eligible borrowers conduct their own due diligence in advance to obtain the necessary information and assemble relevant supporting documentation to include with their electronic submission. Supporting documentation includes

• employer identification number (EIN) and the organization’s industry NAICS code
• formation documents (certificates of incorporation, certificates of formation, bylaws, operating agreements, etc.)
• tax returns for three consecutive years (or for as many years as appropriate for entities in business less than three years)
• financial documentation, including income statement, balance sheet and statement of cash flows
• name of any individual owning 10% or more of the business and such owner’s personal tax returns for three consecutive years (or for as many years as appropriate for entities in business less than three years)
• schedule of debts (for NJEDA to determine cash flow to service the proposed debt) and a list of real estate collateral (the lack of which is no reason for rejection)
• documentation for funding of payroll expenses, if identified: payroll reports/ledger
• documentation for funding of rent expenses, if identified: current lease
• documentation for funding of mortgage expenses, if identified: most recent statement/bill
• documentation for funding of utilities expenses, if identified: most recent bill
• documentation for funding of tax expenses, if identified: most recent municipal
statement/bill
• documentation for funding of inventory expenses, if identified: invoices

 

Application Window and Website
• NJEDA portal: http://cv.business.nj.gov

Dealing with Agencies during COVID-19-Regulatory and Employment-related issues

 

Think of administrative agencies, and you often think of their efforts to enforce the law, such as environmental regulators fining polluters or financial regulators taking inside traders to court. In fact, agencies sometimes do just the opposite: They excuse parties from compliance. Agencies can use either prospective waivers or exemptions to excuse regulated entities from compliance.

Now that the coronavirus disease (dubbed “COVID-19” by the World Health Organization) has been designated a Pandemic clients are increasingly encountering a variety of regulatory and employment-related issues. Here are some specific steps employers-especially in highly regulated industries can take and general guidelines to keep in mind. The simple truth is that no one knows what will happen next. Every business needs to develop an infectious disease response plan. For many businesses that means protecting employees and satisfying regulators on compliance matters. Many regulated business now find they need to move quickly. They can’t wait for an agency to rule on proposed operational changes.

But, the topic can be tricky. On the one hand, waivers and exemptions can be good things. After all, agencies often need to grant flexibility when circumstances require. Emergencies like Hurricane Sandy, for instance, prompted the Federal Transit Administration to issue “blanket waivers for several statutory and regulatory provisions.” New technologies, like “unmanned aircraft systems,” or drones, similarly demand adaptability. In more established settings, such as energy, waste removal, construction and mining operations, general rules do not always fit particular situations. And agencies sometimes just do not have the resources for full enforcement. In still other instances the law is silent on whether an agency can even grant a waiver or exemption. For instance in New Jersey many environmental laws make no mention at all of waivers or exemptions.

In those instances a business must be prepared to make a case for deviating from accepted practices and convince an agency that the circumstances warrant the deviation. During the pandemic it means doing some very practical things to convince an agency of the correctness of your operational changes.

Review the Public Health Information

Employers should familiarize themselves with the public health information published by the CDC, OSHA, and state and local health departments in their area. These materials provide useful information about the coronavirus, how it can be spread, and preventive measures.

The CDC has published general guidance for businesses; specific guidance for organizations with specialized concerns, such as healthcare facilities and schools; and guidance addressed to specific issues, such as travel to and from areas where the coronavirus has spread widely. OSHA has also published guidelines, available.

The EEOC has issued guidance about the coronavirus, available that incorporates the EEOC’s 2009 guidance regarding flu pandemics and also specifically states that the antidiscrimination statutes do not interfere with or prohibit employers from following the recommendations in the CDC’s guidance on the coronavirus.

Understand an Employer’s Obligations

OSHA’s General Duty Clause requires employers to take reasonable steps to keep the workplace free from recognized health hazards that are likely to cause death or serious physical harm.

Practical Steps to Minimize Risk and Protect Employees

There are many practical steps employers can and should take while honoring all of these obligations.

Share Public Health Information with Employees

Circulate the public health guidance to employees, particularly the CDC’s recommendations on precautionary measures, described below. This will not only provide employees with useful information, but also let employees know that their employer is monitoring the situation and taking steps to address it.

Take Precautionary Measures

The CDC’s guidance recommends that employers take certain steps, including the following:

  • Encouraging employees to wash their hands frequently and to avoid touching their noses, mouths, and eyes.
  • Encouraging employees to cover their noses and mouths when coughing or sneezing, preferably by coughing or sneezing into a tissue or the crook of their elbow. Having tissues and hand sanitizer available to employees in the workplace is highly advisable.
  • Employees should avoid close contact with co-workers, especially those who have been traveling in areas where the coronavirus is present or who are experiencing flu-like symptoms. Shaking hands should be avoided as well.
  • Meetings in close quarters should be limited.
  • Work surfaces like telephones and computer equipment should be regularly disinfected. Employees should be discouraged from using another’s phone or computer equipment.
  • Encouraging employees who are sick to stay home.
  • Employers should be flexible about granting leave, even if the leave would not ordinarily be required under the law or the employer’s policies. Denying leave may cause employees to feel compelled to come to work even if they are sick or to bring their children to work even if the children may be sick.
  • Consider modifications to work arrangements to minimize contact in commuting, work, or social settings. Permit or encourage tele-working where feasible. Consider allowing modified arrival and departure times to reduce interaction with crowds during commuting.

The CDC guidance addresses how to assess the risk when employees have traveled to areas where the coronavirus is widespread or have been exposed to an individual who has tested positive for the coronavirus. Depending on whether the risk is high, medium, or low, the employer may require the employee to take steps ranging from self-isolation to self-monitoring to self-observation. These guidelines can provide answers about how to deal with many different employee situations.

In situations where answers are not readily apparent from the guidance materials, consult with public health officials or counsel to obtain proper guidance.

Addressing Specific Situations

Employers should designate an individual or committee to deal with specific situations. The EEOC recommends that employers identify a pandemic coordinator or committee for preparedness and response planning. While employees are to be protected from direct threats to their safety from other employees, the existence of a direct threat must be based, in part, on the severity of the illness. Committee members may also be called upon to determine when and how reasonable accommodations need to be made for employees who have disabilities or medical conditions that may be exacerbated by exposure to COVID-19, such as weakened or suppressed immune systems, who may seek permission to work from home or to limit travel on public transportation. These issues must be carefully considered under the patchwork of laws that may be implicated, including state and federal antidiscrimination laws, state and federal leave laws, and state and federal workplace safety laws.

Conclusion

Waivers, exemptions and programmatic changes in response to emergencies present a significant challenge. Even when waivers and exemptions may be available health and safety may require more immediate action. This requires diligence on the part of business owners and a thoughtful appeal to fairness. Most state courts recognize an agency’s authority to waive rules in certain circumstances and relax rules to achieve sensibility and consistency with legislative intent. (Robison v. New Jersey Dep’t of Human Services, 270 N.J. Super.191,636 A.2nd 1066 (App.Div.1994)).   Agencies may have authority to relax rules, channel reviews and constrain time limits in furtherance of agency responsibilities, but you must provide the arguments to achieve a fair result. Fairness is a continuum. Marshal your facts so that agencies can act closer to fairness than unfairness.

Expanded A-901 Requirements Coming Soon? Salespeople, Consultants and Soil Recyclers Should Prepare.

On June 20, 2019, the New Jersey Legislature began moving a bill (S1683/A4267), that would expand the scope of A-901 requirements to a broader range of persons involved in the solid waste industry, including salespeople and consultants. The bill also would subject persons or companies engaged in soil and fill recycling services to the same regulation as those engaged in the business of solid waste.
This proposed legislation passed the Senate unanimously on June 20, 2019 and is now pending before the Assembly.
There are extensive regulations in New Jersey governing businesses involved in the solid waste and recycling industries. Many people do not realize that it is a long and complicated process to become a fully licensed solid waste transporter, facility or broker. And some do not realize that they cannot conduct a solid waste business in the State of New Jersey until the process is completed.
One of the most time-consuming aspects of solid waste licensing is obtaining A-901 approval. The “A901” currently does not apply to those involved in recycling. The A-901 program was adopted many years ago in response to the infiltration of organized crime into the solid waste business to ensure those conducting the business of solid waste in New Jersey have the requisite integrity, reliability, expertise and competence. There are some limited exceptions to A-901 licensing requirements for self-generators of solid waste and Licensed Site Remediation Professionals who manage solid and hazardous waste in connection with remediation projects.
While the process to apply for an A-901 license is long (on average 18 months or longer), our experience has provided several practical considerations that can make the process smoother:

  • The applicant is not the only entity responsible for completing the corporate history disclosure forms; each parent company and potentially even equity, private and remote investors must completely fill out these forms. Moreover, every key employee, owner, officer, director, member and partner in the business must submit a personal history disclosure form, that includes information about family members, employment history and these individuals must also submit to fingerprint checks. It is imperative that these persons be complete in their responses.
  • The New Jersey State Police are obligated to do a background check on applicants. So be prepared to respond to questions and/or inquiries about situations that may have occurred years ago. For example, an applicant recently was asked about long unpaid motor vehicle citations; an affidavit from the applicant explaining that were out of the country at the time and did not own the car in question kept channeled and constrained the background check keeping things on track. In another instance a longstanding litigation unrelated to current business operations came up. By settling the matter the background check stayed on course.
  • Make sure the business is in good standing, including with the Division of Taxation.

Finally, if the applicant is qualified”, NJDEP will issue the A-901 license, but may as a condition require the recipient to attend an NJDEP seminar and/or obtain a letter from an attorney stating that the company has been advised of the applicable laws and regulations and is aware of its compliance obligations. Having an attorney that has been involved in the A-901 application and that will be available to complete this step will also help to efficiently navigate the process.
For more information, please contact the author or any Government Affairs Advisor at DMGS.

New Jersey BPU Adopts Community Solar Regulations

On February 19, 2019 the New Jersey Board of Public Utilities (“BPU”) formally adopted its proposed regulations (the “Regulations”) regarding the Community Solar Pilot Program (the “Pilot Program”).  Although there are some minor clarifications, and 339 published comments, there are no material changes to the proposed regulations that were published for comment on October 1, 2018.

The first year of the Pilot Program began upon adoption of the Regulations on February 19, 2019, and will end on December 31, 2019.   The remaining two years of the Pilot Program will be calendar years 2020 and 2021.

The next step for the BPU will be to adopt the proposed regulations regarding the form of application which were published on November 28, 2018, and to begin accepting applications.

For further information contact the author. 973-222-1855

Contenders for U.S. EPA Administrator

President-elect Donald Trump is scheduled to meet today with two possible contenders for U.S. EPA administrator who have called for rollbacks of some of the more contentious environmental rules.

Oklahoma Attorney General Scott Pruitt (R), who’s helping to lead the legal fight against the Obama administration’s climate rule, and former Texas environmental regulator Kathleen Hartnett White — who has called for restraining ” EPA” — are both scheduled to meet with Trump and Vice President-elect Mike Pence in New York as they continue to announce picks for administration jobs.

Both Pruitt and Hartnett White have been rumored candidates for EPA leadership under Trump. He’s a lawyer who has climbed the political ranks in the Sooner State and recently said he’d consider running for governor in 2018. She’s a public policy expert who served as a Texas environmental regulator and as a special assistant in the White House for first lady Nancy Reagan.

They’d both be expected to reshape the agency by reducing or reshaping regulations.

Many other names have been floated for EPA administrator, including additional state officials and former George W. Bush administration EPA political appointees. Another state attorney general, Patrick Morrisey of West Virginia, has been mentioned for the EPA job.

Trump’s other meetings scheduled for this week include sit-downs with rumored contenders for secretary of State retired Gen. David Petraeus, former Massachusetts Gov. Mitt Romney and Senate Foreign Relations Chairman Bob Corker (R-Tenn.). Trump will also meet tomorrow with Rep. Marsha Blackburn (R-Tenn.), House Homeland Security Chairman Michael McCaul (R-Texas) and Rep. Lou Barletta (R-Pa.), according to the transition team.

The Bureau of Land Management to hold online lease sales for oil and gas drilling.

Last week, the Bureau of Ocean Energy Management held its first live-streamed offshore oil and gas lease sale.

The Bureau of Land Management issued a rule on Tuesday announcing that agency’s intention to hold online lease sales for oil and gas drilling, starting in September.

The agency’s first online lease sale will be Sept. 20, offering 4,398 acres of land in Kentucky and Mississippi, the agency said. Congress gave the agency the authority to hold the auctions online, rather than in person, in an amendment in the National Defense Authorization Act for fiscal year 2015.

The agency “believes that online sales have the potential to generate greater competition by making participation easier, which has the potential to increase bonus bids,” it said in its announcement.

The rule, which formalizes the plan to hold online lease sales, takes effect immediately. It doesn’t require a public comment period because it only restates language from the NDAA legislation and only changes the agency’s own operations.

The decision is part of a broader push by lawmakers to move onshore and offshore lease sales online rather than in person. The possibility of attracting more bids is one reason for such a shift. Another is that it stops anti-fossil fuel protesters from disrupting lease sales.

14 states sue EPA over EPA’s oil and gas rules

A coalition of 14 states has sued the Environmental Protection Agency on Tuesday over its far-reaching regulations for the oil and gas sector, calling the rules a “job-killing attack” on the nation’s oil and natural gas workers.

The lawsuit asks the D.C. Circuit Court of Appeals to review the EPA’s rule regulating methane emissions from new, reconstructed and modified oil and gas wells that use fracking, saying that the agency is exceeding its statutory authority.

The states argue that the regulations impose an “unnecessary and burdensome” standard on the oil and natural gas industry, “while setting the stage for further limits on existing oil and gas operations before President Obama leaves office.”

The states argue that the regulations “would raise production and distribution costs and, in turn, force an increase in consumer utility bills” by making fuel costs higher for power plants that are increasingly dependent on low-priced natural gas. “The EPA itself predicts its regulations will cost $530 million in 2025, while other studies project the annual price tag may hit $800 million.

In addition to West Virginia, the lawsuit includes attorneys general from Alabama, Arizona, Kansas, Kentucky, Louisiana, Michigan, Montana, Ohio, Oklahoma, South Carolina and Wisconsin, along with the Kentucky Energy and Environment Cabinet and North Carolina Department of Environmental Quality.

Basic Rules on Lobbying by 501(c) (3) Organizations

According to the Internal Revenue Code , nonprofit organizations with 501(c)(3) tax-exempt status are organized “for charitable, religious, educational, or scientific purposes,” (IRS Tax Code) and these organizations are subject to the rule that lobbying cannot be a substantial part of their activities.

The organization’s articles [constitution, by-laws] may not “expressly empower it to devote more than an insubstantial part of its activities to attempting to influence legislation by propaganda.”

501(c)(3) organizations may not directly or indirectly participate in political campaigns by supporting or endorsing candidates for public office or by publishing or distributing statements on behalf of a candidate’s campaign. However, 501(c) (3) organizations may lobby as long as that lobbying remains an insubstantial part of their activities.

Direct Lobbying

Direct lobbying is communicating your views to a legislator or a staff member of any other government employee who may help develop the legislation. To be lobbying, you must communicate a view on a “specific legislative proposal.” Even if there is no bill, you would engage in lobbying if you ask a legislator to take an action that would require legislation, such as funding an agency. Significantly, if you ask your members to lobby for this bill, that also is considered direct–not grassroots– lobbying. People are considered members if they contribute more than a nominal amount of time or money. If a newsletter article that goes to both members and non-members urges them to take action, the amount you would need to allocate to grassroots lobbying would be only the percentage of non-members who received your newsletter. However, if you simply tell people about a specific piece of legislation and your position on it but you don’t encourage them to contact their legislators, this is not counted as lobbying.

Direct lobbying also involves trying to influence the public on referenda and ballot initiatives. In these cases, the public are, in essence, the legislators.

Grassroots Lobbying

Grassroots lobbying is trying to influence the public to express a particular view to their legislators about a specific legislative proposal. A communication is considered lobbying (a “grassroots call to action”) if it states that the readers should contact a legislator, or if it provides the legislator’s address and/or telephone number, or provides a post card or petition that the person can use. It is also considered a lobbying communication if you simply identify legislators who are opposed to or undecided about your view of the legislation, or identify that person’s legislators, or state who is on the committee that will vote on the legislation. (This is called “indirect encouragement.”) Simply identifying a bill’s sponsor (the “Istook amendment”) is not considered indirect encouragement.

Organizations that send out frequent “calls to action” urging their members to contact their legislators, organizations that employ an outside lobbyist or lobbying firm, and organizations that lobby through their employees should consult Section 501(h) of the Internal Revenue Tax Code for reporting rules and procedures.

Overhaul of Small Business Subcontracting Rules

The Federal Acquisition Council published several new contracting rules Thursday, including one designed to increase government subcontracting to smaller businesses.

The new federal acquisition circular adds the terms of a 2013 Small Business Administration rule that made a number of changes to federal small business subcontracting requirements into the Federal Acquisition Regulation, the council said. The rule will go into effect at the beginning of November.

The circular also includes several other changes, such as clarifications meant to reduce confusion for contractors, according to the council, which includes the U.S. Department of Defense, U.S. General Services Administration and NASA.

Contractors will have to assign specific North American Industry Classification System codes — used for collecting statistical data — to subcontracts and to provide socioeconomic status of a subcontractor in notifications to unsuccessful subcontract offerers. In addition, contractors will be barred from blocking subcontractors from discussing payment or utilization issues with a contracting officer.

Contracting officers will also get expanded authority, including the discretion to require that small business subcontracting goals be defined in terms of total contract spending — not just based on required subcontract spending — and to request a new subcontracting plan if and when prime contractors grow beyond small business status.

Officers can also establish subcontracting goals at the task or delivery order level when making procurements under overarching indefinite-delivery, indefinite-quantity contracts, among other changes.The rule also changes the way credit is assigned to federal agencies for meeting their small business contracting goals, allowing agencies that fund a contract — not just those responsible for awarding the deal — to receive credit.

The council had issued a proposed version of the rule in June 2015, following on from the SBA’s final rule, which had been put in place in July 2013, and received several dozen comments on the proposal.

Responding to those comments, the council made several tweaks in the final measure, including clarifying that although contracting officers can establish subcontracting goals for each task order, they cannot ask for new subcontracting plans.

In another tweak, the council also said that prime contractors won’t be held liable for misrepresentations made by a subcontractor regarding size or socioeconomic status, if the contractors otherwise acted in good faith.

The other changes in the circular include revisions to forms related to contracts involving bonds and other financial protections aimed at clarifying liability limitations and reducing confusion for contractors, and updates to outdated references in the regulation to federal guidance on administrative and audit requirements.