Criminal Law

• Sex Crimes
  A mother’s health when reasonable medical judgement dictates that performing the abortion is necessary to prevent any serious health risk, permanent impairment, or death
• Fraud
  The CTA requires certain domestic and foreign companies to disclose beneficial ownership information to FinCEN and establishes information sharing obligations on private businesses (and others) designed to help fight the misuse of corporate structures that facilitate various criminal enterprises, such as money laundering, terrorism, tax fraud, human and drug trafficking and other financial-related criminal acts that are harmful to the national security interests. The CTA will become effective after the Secretary of the Treasury issues regulations implementing the CTA’s requirements; however, a timetable for accomplishing these steps has not been published.
• Theft
• Embezzlement
  An employer who hires an employee considered “high risk” might also qualify to receive a fidelity bond under a separate Federal Bonding Program. The bond covers one incident of theft, forgery, larceny, or embezzlement during the first six months of employment. These bonds are provided at no cost to the employer for employees who are not commercially bondable because they are ex-offenders, ex-addicts, have a poor financial credit history, were dishonorably discharged from the military, lack a traceable work history, or have other experiences that tarnish their credibility. The bonds are typically $5,000 but can increase to $25,000 if the employer can show circumstances that justify a higher bond. Bonds can be made for any job, full or part-time, in any state. www.in.gov/dwd/2459.htm
• Drug Crimes
• Assault
• Forgery
• Money Laundering

Business and Corporate Law

• Corporate Law
  While little argument can be made against the intended benefit of the CTA relating to combating criminal behavior, the CTA presents an expansion of the scope of private information that will be filed with a government agency. Based on the list of excluded companies, the reporting obligations and risks will impact small, privately-held businesses most directly and expose those having responsibility and involvement in the reporting process to criminal risk for failure to report or update accurately the required information about beneficial ownership of the reporting companies. Guidance will no doubt come from the regulations to be issued by the Department of the Treasury, but companies will almost certainly need to consider processes for gathering and updating accurate information from its owners. This could include changes to governing documents, shareholder agreements, operating agreements and similar documentation among the owners. We will continue to monitor the developments with the CTA and provide further updates as appropriate.
• Mergers and Acquisitions
  In this podcast Mergers & Acquisitions specialist, Robert A. Greising, dives into a continuation of our 2022 Deal Landscape focusing on Reps and Warranties Insurance.
• Limited Liability Companies
  Corporations and limited liability companies offer, as a primary benefit to using an entity form for operating a business, limited liability protection to the owners for the entity's actions, debts, and other obligations. This concept means that the debts and liabilities of the entity belong to the entity, – and as such, an entity's owner is not personally liable for them. As you can imagine, this concept is instrumental for an entrepreneur as it allows them to separate the risk of the business from the owner's personal assets. Unfortunately, circumstances could arise where your actions effectively forfeit that limited liability protection, and in those instances, a court may hold you personally responsible for the entity's actions or debts. This legal doctrine is known as "piercing the corporate veil."
• Trade Secrets
  Confidentiality agreements also provide protection for information that may not otherwise be protected by law. For example, while the federal Defend Trade Secrets Act of 2016 (“DTSA”) provides protection for certain information that falls under the DTSA’s definition of a “trade secret,” relying on trade secret laws alone to protect confidential information is insufficient. While information that qualifies for protection under trade secret laws is considered confidential information, not all confidential information is considered a “trade secret.” Further, trade secret protection, if applicable, can be weakened or deemed waived if disclosed without a written agreement in place requiring that such information be kept strictly confidential.
• Intellectual Property
  Every company should take reasonable measures to maintain confidentiality of information, as well, including the following: (1) identify confidential information; (2) assess the best method for protecting confidential information (i.e., confidentiality agreements, physical and cyber security to protect information, protection under other intellectual property law); (3) define “confidential information” and “trade secrets,” if applicable, in contracts with employees, independent contractors, and other parties who may have access to such information; (4) enter into legally compliant confidentiality agreements and update such agreements as necessary; (5) for trade secrets, establish, monitor and implement protocols that keep those trade secrets accessible only to those who need to have access; and (6) educate and regularly remind employees and others who may have access to confidential information about relevant contractual obligations and the importance of safeguarding such information.
• Antitrust

Employment Law

• Employment Discrimination
  In its press release, the EEOC states that the plain language and bullet point format makes it easier for employers and employees to understand their rights and responsibilities when it comes to federal discrimination laws. The updated poster also includes harassment as a prohibited form of discrimination and clarifies that sex discrimination includes discrimination on the basis of pregnancy and related conditions, sexual orientation, and gender identity. Further, in response to the modern digital age, the poster now includes a QR code that can be scanned for easy access to the EEOC’s webpage on “How to File a Charge of Employment Discrimination.” The “Know Your Rights” poster also provides information about equal pay discrimination for federal contractors. The poster is currently available in English and Spanish, however, it will eventually be available in other languages as well.
• Employment Contract
• Non-compete Agreement
  On January 5, 2023, the FTC issued a proposed rule that purposes the ban of virtually all non-compete agreements, including those entered into before the rule takes effect. This breaks the silence from the FTC on this subject and is a direct response to the Executive Order issued by the Biden Administration in July 2021 which asked the FTC to act against anti-competitive behavior. The FTC voted 3-1 to publish this proposed rule and those in favor stated, “[the Notice of Proposed Rulemaking] marks the [FTC]’s commitment to exercising the full set of tools and authorities that Congress gave [it] and to ensuring that our work is protecting all Americans.” However, as FTC Commissioner Christine S. Wilson notes in her strong dissenting statement, the “proposed Non-Compete Clause Rule represents a radical departure from hundreds of years of legal precedent that employs a fact-specific inquiry into whether a non-compete clause is reasonable....”
• Severance Agreement
  McLaren Macomb which reversed its own precedent with respect to non-disparagement and confidentiality provisions in severance agreements. The NLRB’s recent decision reinstates prior precedent which...
• Sexual Harassment
  Last week, the Senate passed a bill, Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, that will nullify forced arbitration clauses in sexual assault and sexual harassment cases. The bill has been sent to President Biden’s desk for signature and is expected to be signed...

Property Law

• Construction Litigation
  Imagine having to litigate half of a construction dispute in court and the other half in arbitration. The Indiana Court of Appeals recently analyzed that conundrum in
• Real Estate Transactions
  Numerous issues arise in any real estate transaction, including the need for proper due diligence, securing financing, and making a business plan for the added risks real property ownership can entail. For an Indiana nonprofit corporation, additional requirements and obligations must be considered when venturing into real estate, such as: can a nonprofit organization hold title to real estate? Must a real estate subsidiary be a certain type of entity? And does a nonprofit landlord jeopardize its tax-exempt status by receiving rent? Ultimately, these questions are best answered through consultation with your attorneys and accountants, and we provide this alert with the hope of providing a brief birds-eye view of the road ahead.

Trusts and Estates

• Estate Planning
  Hurricane Ian focused our thoughts on Florida over the last week. Many of us have family, friends and clients in Florida, living full-time, “snow birding,” or just visiting. As we think about those individuals we are reminded of the various homes, condominiums and other real estate interests they own, rent or may be thinking about renting or buying in Florida. The first reaction of most estate planning attorneys when confronted with a client owning real estate outside of Indiana is to transfer that property into a trust, LLC or other method to avoid the need for probate administration in Indiana and an ancillary probate administration in Florida. Easy in concept, however, Florida’s property tax laws may yield a result that could be much worse than ancillary administration.
• Wills
  Second, OCR published the Practice’s name. The adverse publicity was likely embarrassing and counter-productive to the Practice’s interests. Years of efforts to build up patient good will and trust can be compromised by an unfortunate act of carelessness or disposal practice that does not meet the privacy and safeguarding requirements of HIPAA.
• Probate

Finance Law

• Bankruptcy
  As inflation and interest rates rise, a recession is likely coming. A recession means more bankruptcy filings. Providers of goods and services often unknowingly find themselves embroiled in bankruptcy litigation if the provider received payment within 90 days of the customer’s bankruptcy filing....
• Foreclosure
  The key is the definition of “change of ownership” or “change of control” as a change deemed to be one of those can subject the property to reassessment to fair market value on the following January 1st. Florida law defines the “change of ownership” as any sale, foreclosure or transfer of legal title or beneficial title in equity to any person. That definition is obviously broad enough to pick up the transfer from the client to the client’s revocable trust; even though there is a very good argument that no actual change of ownership or control in that circumstance occurred. As each county’s property appraiser is different and applies the law differently, it is best to contact that appraiser to determine if the proposed transfer will trigger the reassessment.
• Tax Law
  Pursuant to the Program, the IRS will notify qualified plan sponsors by letter that their plan was selected for audit. The letter will allow a 90-day window during which the plan sponsor can review the plan’s documents and operations to determine if they meet current tax law requirements. During the review period, if the plan sponsor detects errors in the plan’s documents or operations and the errors are eligible for self-correction, the plan sponsor may self-correct the mistakes under SCP. However, if the mistakes are not eligible to be corrected under SCP, a plan sponsor can request a closing agreement from the IRS approving the corrections. Prior to the Program, calculated sanctions would be assessed against the plan sponsor at this time. Under the Program, the IRS will use the fee structure for VCP to determine the amount the plan sponsor will pay under the closing agreement. The VCP fee is based on total plan assets, with a maximum fee of $3,500 (as of the date of publication).
• Debt Collection
  The proposed rule adds a new subchapter titled “Rules Concerning Unfair Methods of Competition” to Title 16 of the Code of Federal Regulations (“CFR”). For a background, Title 16 of the CFR has rules about the operation of the FTC, the Fair Credit Reporting Act, the Magnuson-Moss Warranty Act, the Hart-Scott-Rodino Antitrust Improvement Act of 1976, the Fair Debt Collection Practices Act, and a separate Chapter regarding the Consumer Product Safety Commission. The proposed rule has various sections, each of which is detailed below.