Publications

Insights into the middle market.

Publications

Publications
  • The Struggle to Keep a Green Card During COVID-19
    September 15, 2020

    With the COVID-19 pandemic ongoing now for close to six months, U.S. permanent residents and conditional permanent residents caught outside the United States due to COVID-19 are experiencing significant challenges in making return travel plans home to the United States.

  • U.S. Department of Labor Publishes New Guidance Concerning FFCRA COVID-19 Paid Leave and School Re-openings
    August 28, 2020

    The U.S. Department of Labor (DOL) published new FAQs on August 27, 2020, for employers about paid leave under the Families First Coronavirus Response Act (FFCRA) related to the re-opening of schools. The guidance describes eligibility for paid leave in response to the varied reopening formats and schedules announced by schools including blended in-person and remote learning.

  • Insight on Amazon’s Neutral Patent Evaluation Procedure
    August 26, 2020

    In early 2019, Amazon introduced the Neutral Patent Evaluation Procedure, a streamlined and cost-effective program for resolving disputes between owners of utility patents and Amazon Marketplace sellers accused of infringing those patents. Having represented Amazon Marketplace sellers and a patent owner in Neutral Patent Evaluations, I am convinced that the program works. Utility Patent disputes adjudicated through the Neutral Patent Evaluation Procedure are resolved in far less time than it takes for a patent infringement case to wend its way through a federal district court and at a fraction of the cost. The evaluators are attorneys with relevant technical or patent litigation experience. In my experience, they have not exhibited bias for or against patent owners or Amazon Marketplace sellers, or against Marketplace sellers based overseas such as in China.

  • TIPS for Parents and College Students: Add Health Care Advance Directives to Your School Packing List
    August 26, 2020

    As students return to colleges and universities across the United States amid COVID-19 concerns, students, their parents and their families should ensure that arrangements for the student’s medical decision-making for an emergency are made. These arrangements will protect the student if they cannot make medical decisions for themselves and ensure that their loved ones will be entitled to receive protected Medical information. It is important, and often forgotten, that anyone over the age of 18 is legally an adult and can no longer rely on the legal authority of their parents as their legal guardian to help them make medical decisions.

  • Suing a Sovereign for Infringement
    August 25, 2020

    Although a seemingly infrequent issue, the ability to sue domestic and foreign sovereign entities in intellectual property disputes has been the subject of recent seminal U.S. Supreme Court and Appellate Court decisions. In these decisions, the Courts addressed statutes that seek to abrogate sovereign immunity to allow suits by private individuals against foreign and domestic states in intellectual property actions. While the Supreme Court has now made it clear that a state cannot be sued for copyright (or patent) infringement, the Second Circuit held that a foreign entity may be sued in U.S. courts under certain circumstances.

  • COVID-19 and Considerations for March-In Rights and Compulsory Licenses
    August 24, 2020

    The COVID-19 pandemic has had an enormous and likely long-term impact on research into infectious diseases, ushering in a flurry of investigation into possible treatments and vaccines. The pandemic is also influencing how those in the wider healthcare system will bring relevant diagnostics and therapies to the market and ultimately to those in need.Many of the future underlying innovations in diagnostics, treatments, vaccines, and other related healthcare services for COVID-19 will come from a university, research institution or other recipient of federal research funding. The desperate healthcare, social and political needs for these innovations may dramatically influence how future research and medical innovations enter the market and ultimately reach patients in need. As such, COVID-19 could substantially affect how both the United States and the world deal with similar crises in the future.

  • USCIS Relaxes Some I-9 Compliance Requirements
    August 21, 2020

    A settlement decree in the case of Subramanya, et al. v. USCIS, Case No. 2:20-cv-3707 (S.D. OH, Eastern Div., 2020), resulted in permission for foreign nationals to present an approval notice (Notice of Action) alone to evidence employment authorization in the United States until December 1, 2020. United States Citizenship and Immigration Services (USCIS) has been experiencing a backlog of tens of thousands of employment authorization cards and was sued in federal court to enforce administrative regulations. Employers should be aware that this is a temporary departure from standard I-9 compliance rules.

  • COVID-19 Reopening Safety Plans and Updating Employee Policies
    August 19, 2020

    The COVID-19 global pandemic has created additional health and safety considerations for employers, who as it is, already have a general duty to provide a safe working environment. As businesses and employers prioritize the health, safety, and well-being of their employees and workers, their families, and the wider community, through updating and maintaining their required written Reopening Safety Plans, they are also focusing on disseminating written COVID-19-related workplace policies.

  • SEC Provides Supplemental Guidance on Voting Responsibilities of Investment Advisers
    July 30, 2020

    On July 22, 2020, the Securities and Exchange Commission (SEC) amended its proxy solicitation rules regarding proxy advisers. In general, these amendments codify the SEC’s position that proxy adviser’s voting advice constitutes a “solicitation” under the federal securities laws proxy rules.

  • USCIS Discloses Delays in Issuance of Permanent Resident Cards and Employment Authorization Documents; Trusted Traveler Program Resumes for New Yorkers
    July 29, 2020

    U.S. Citizenship and Immigration Services (USCIS) Ombudsman's office disclosed in an alert on July 21, 2020, that the agency was experiencing card production delays. In addition, the Administration recently reversed its February 2020 decision to bar New York residents from participation in the Trusted Traveler programs, including Global Entry, NEXUS, SENTRI and FAST.

  • Labor Law Amendments Mean New Wage Notices and Wage Statements for All Who Are Subject to Wage Parity
    July 28, 2020

    While everyone’s attention was fixed on COVID-19 and the surrounding chaos, New York State Governor Andrew Cuomo signed the state budget for fiscal year 2020-2021, ushering in several new labor laws and amendments. Some of these such amendments concern the Home Health Care Worker Wage Parity Law (Wage Parity Law) and New York’s Wage Theft Prevention Act (WTPA).

  • ACT NOW. New Prevailing Wage Notification Requirements Are in Effect!
    July 28, 2020

    Does your company perform “prevailing wage” work? If so, you now have additional obligations under New York’s Wage Theft Prevention Act (WTPA), which was amended by Governor Andrew Cuomo’s signing of the 2020-2021 state budget. Examples of prevailing wage work include non-union positions in construction or building service jobs.

  • U.S. Department of State Issues an Announcement Clarifying Exceptions to Presidential Proclamations on Immigration; Student Visa Restrictions Relaxed
    July 23, 2020

    On July 16, 2020, the U.S. Department of State (State Department) issued an update on its website which clarified the exceptions available to bans on entry to the United States for foreign nationals imposed by Presidential Proclamations 10014 and 10052.

  • Second Circuit Slaps Down Anti-SLAPP Motions as Barred in Federal Court
    July 20, 2020

    In a striking decision issued on July 15, 2020, the U.S. Court of Appeals for the Second Circuit held that motions to dismiss based on state Anti-SLAPP statutes, which require that plaintiffs satisfy a high standard of proof in certain types of defamation cases, cannot be made in federal court because such motions conflict with Rules 12 and 56 of the Federal Rules of Civil Procedure. 

  • What Can Instagram Do With Your Publicly Posted Photographs?
    July 7, 2020

    When you upload content on Instagram, you can choose to make your post "public" or "private." According to Instagram, not only is the public content accessible and searchable by Instagram's users, the content is also subject to use by them on their websites via Instagram's application programming interface or "API."

  • Paycheck Protection Program Extended Through August 8, 2020
    July 7, 2020

    Under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), the Small Business Administration is tasked with administering the Paycheck Protection Program (PPP), the loan program intended to allow employers to continue to pay their employees and assist with certain other expenses resulting from the COVID-19 pandemic.

  • Federal Reserve Bank of Boston Announces Main Street Lending Program Is Fully Operational
    July 7, 2020

    The Federal Reserve Bank of Boston announced the Main Street Lending Program is “now fully operational, ready to purchase participations in eligible loans that are submitted to the program by registered lenders.”

  • New York State Reopening: Status and Updates on Work From Home Requirements
    July 7, 2020

    New York City entered Phase III of reopening on Monday, July 6, 2020. However, indoor dining was postponed in New York City due to concerns regarding the risk of spreading COVID-19.

  • SBA Issues New Interim Final Rule for Paycheck Protection Program– Guidance Your Business Should be Aware Of
    July 1, 2020

    Under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), the Small Business Administration (SBA) is tasked with administering the Paycheck Protection Program (PPP), the loan program intended to allow employers to continue to pay their employees and assist with certain other expenses resulting from the COVID-19 pandemic.

  • New Executive Order Extends Travel Ban for Certain Visas
    June 23, 2020

    An executive order further limiting entry for nonimmigrant workers in H-1B, H-2B, L-1 and J-1 status (and their dependents) will take effect on June 24, 2020, at 12:01 am and will remain in effect through December 31, 2020.

  • U.S. Supreme Court Issues Decision Upholding DACA
    June 19, 2020

    On June 18, 2020, the U.S. Supreme Court, in a 5-4 decision delivered by Chief Justice John G. Roberts, ruled that the administration was barred from terminating the Deferred Action for Childhood Arrivals (DACA) program.

  • Internal Revenue Service Announces Relief for Qualified Opportunity Zone Investors
    June 11, 2020

    On June 4, 2020, the Internal Revenue Service issued Notice 2020-39, which provides temporary relief to qualified opportunity funds (QOFs) and their investors as a result of the COVID-19 pandemic.

  • Federal Reserve Bank of Boston Modifies Main Street Lending Program
    June 10, 2020

    The Federal Reserve Bank of Boston announced changes to the Main Street Lending Program (Program) to allow more small and medium-sized businesses to be able to participate in the Program. 

  • Federal Reserve Advances Towards Launching Main Street Lending Program
    June 9, 2020

    The Federal Reserve recently announced that the Federal Reserve Bank of Boston has set up the special purpose vehicle (SPV) to purchase participations in loans originated by eligible lenders under the Main Street Lending Program (Program). In addition, Program loan participation agreement, form borrower and lender certifications, and other required form agreements are now available on the Federal Reserve Bank of Boston’s Main Street Lending Program Forms and Agreements website. The Federal Reserve also updated its Frequently Asked Questions (FAQs), dated May 27, 2020.

  • Amendment to CARES Act and PPP Loan Forgiveness
    June 5, 2020

    On June 5, 2020, President Trump signed H.R. 7010 (the Bill), which the Senate had unanimously passed. The Bill amends several provisions of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) and the Paycheck Protection Program (PPP).

  • USCIS Resumes Premium Processing for I-129 and I-140 Petitions in a Phased-in Approach
    June 2, 2020

    Premium processing, the vehicle utilized by many U.S. petitioners filing for nonimmigrant and immigrant-based benefits is being resumed by U.S. Citizen and Immigration Services (USCIS) with a phased-in approach commencing June 1, 2020. USCIS notified the public on May 29, 2020, that the suspension of premium processing originally announced on March 20, 2020, would be lifted and a resumption of the popular 15-calendar day ”fast track” turnaround would be implemented as outlined below.

  • Project Restart: Strategy For Remobilizing Construction
    May 28, 2020

    New York State Governor Andrew Cuomo recently announced phased reopening of businesses, with the construction industry included in Phase 1. The Governor’s announcement means project owners in New York should prepare for construction to restart. Given the long pause of most projects in New York, contractors and subcontractors will first report to their most profitable projects where payments are made timely.  We recommend that owners consider taking the following steps before the construction ban is lifted to successfully restart their projects.

  • Alternative Loan Options For Certain Small Businesses, Non-Profits and Landlords in New York State
    May 28, 2020

    For certain small businesses, non-profits and landlords who did not receive a Paycheck Protection Program loan or an Economic Injury Disaster Loan from the Small Business Administration, New York State is making available loans under the New York Forward Loan Fund (NYFLF). The NYFLF is a new economic recovery loan program aimed at supporting New York State’s small businesses, non-profits and landlords as they reopen after the COVID-19 outbreak and New York State on PAUSE.

  • Main Street Loans: How Much May a Company Borrow?
    May 27, 2020

    Federal Reserve Chairman Jerome Powell announced on May 19, 2020, before a Senate Committee that the Main Street Lending Program (Program) is anticipated to be launched around the end of May. Prospective borrowers should be preparing for making loan applications with participating lenders when the Program commences.

  • New York City Council Passes Suspension of Personal Guarantees for Certain Commercial Tenants
    May 27, 2020

    On May 26, 2020, New York City Mayor Bill de Blasio signed the City Council’s bill No.1932-A (the Personal Liability Bill). The Personal Liability Bill adds a new section 22-1005 to the administrative code of the City of New York, suspending the enforcement of personal liability provisions for certain commercial tenants affected by the COVID-19 crisis.

  • SBA Releases Additional PPP Loan Review Guidance
    May 27, 2020

    On May 22, 2020, the Small Business Administration (SBA), in consultation with the U.S. Department of Treasury, published an interim final rule (the Review Guidance) to supplement previous Paycheck Protection Program (PPP) loan forgiveness guidance. The Review Guidance is intended to establish the standards by which the SBA will investigate whether a loan met program requirements and the circumstances under which it will be released from liability on a guarantee for such a loan.

  • SBA Releases Additional PPP Loan Forgiveness Guidance
    May 26, 2020

    On May 22, 2020, the Small Business Administration, in consultation with the U.S. Department of Treasury, published an interim final rule to supplement previous Paycheck Protection Program loan forgiveness guidance.

  • Presidential Proclamation Halts Travel from Brazil Commencing May 26, 2020 at Midnight
    May 26, 2020

    On Sunday May 24, 2020, the White House issued a Presidential Proclamation (Proclamation) suspending the entry of travelers who have recently been to Brazil. This will become effective on May 26, 2020 at midnight. This travel ban is in addition to the ban currently in force for certain travelers from China, Europe, the United Kingdom, Ireland and Iran. The United States, Canada and Mexico also recently extended travel restrictions and crossing borders except in the case of "essential travel" until June 21, 2020. 

  • Eligibility Requirements for Federal Reserve’s Main Street Lending Program
    May 21, 2020

    Federal Reserve Chairman Jerome Powell announced on May 19, 2020, before a Senate Committee that the Main Street Lending Program (Program) is anticipated to be launched around the end of May. Prospective borrowers should be preparing for making loan applications with participating lenders when the Program commences.

  • Posting Pictures on Social Media: Do's and Do Not's
    May 21, 2020

    Now more than ever before, almost everyone is online, both personally and for business purposes. There is a lot of confusion about posting pictures and images on social media - Instagram, Facebook, Pinterest and other platforms. What is legally permitted and what isn't?

  • Form I-9 Employment Eligibility Verification Updates
    May 19, 2020

    Commencing May 1, 2020, employers verifying identity and employment authorization for their employees must use the October 21, 2019 edition of Form I-9: Employment Eligibility Verification. All U.S. employers must properly complete Form I-9 for each person they hire, regardless of whether the individual is a U.S. citizen, permanent resident or non-citizen. 

  • COVID-19 Pandemic: An Increase in Business Divorce?
    May 19, 2020

    One need not have a specialized “barometer” to anticipate an onslaught of partnership storms for closely held businesses. Similar to the way in which sociologists and family counselors have predicted unfortunate spikes in marital divorce rates across the nation, all largely the result of our global pandemic and our ongoing attempts to adjust to this so-called “new normal,” we too have seen increased rancor among business partners. Interestingly, the unrest is not limited to businesses that are failing or otherwise suffering. Regrettably, we are also seeing increased partner discord in healthy thriving enterprises.

  • SBA Releases PPP Loan Forgiveness Application and Instructions
    May 18, 2020

    On May 15, 2020, the Small Business Administration, in consultation with the U.S. Department of Treasury released the Paycheck Protection Program (PPP) Loan Forgiveness Application (the Forgiveness Application) and detailed instructions for the Forgiveness Application. To apply for PPP loan forgiveness, the borrower must complete the Forgiveness Application and submit the completed application and required documentation to its lender.

  • SBA Extends Good Faith Certification Safe Harbor Until May 18, 2020 and Loan Increases for Certain Partnerships
    May 15, 2020

    Under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), the Small Business Administration (SBA) is tasked with administering the Paycheck Protection Program (PPP), the loan program intended to allow employers to continue to pay their employees and assist with certain other expenses resulting from the COVID-19 pandemic.As the PPP went into immediate effect without the standard comment period, the SBA continues to issue additional guidance in the form of Frequently Asked Questions (FAQs) and responses as well as Interim Final Rules (IFRs). The most recently updated FAQs, current as of May 13, 2020, are available here and the most recently issued IFRs are available here. Importantly, the U.S. government will not challenge lender PPP actions that conform to the FAQs, and to IFRs and any subsequent rulemaking in effect at the time.

  • Prioritized Examination for Certain COVID-19 Related Patent Applications
    May 14, 2020

    On May 8, 2020, the United States Patent and Trademark Office (USPTO) announced a new program for expediting certain COVID-19 related patent applications. Under the COVID-19 Prioritized Examination Pilot Program, the USPTO will grant requests for prioritized examination to small or micro entity status applicants without requiring payment of the typical prioritized examination fees. Also under this program, the USPTO will endeavor to reach final disposition of applications within six months if applicants are responsive.

  • FDA Issues Guidance Related to CARES Act Amendments for Medical Device Manufacturers
    May 13, 2020

    The U.S. Food and Drug Administration (FDA) recently published a new guidance (the Guidance) related to medical device shortages or potential shortages during the COVID-19 pandemic The Guidance is meant to implement Section 506J of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 351 et seq.), which was added under Section 3121 of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act).

  • SBA Issues Additional Guidance on Good Faith Certification
    May 13, 2020

    Under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), the Small Business Administration (SBA) is tasked with administering the Paycheck Protection Program (PPP), the loan program intended to allow employers to continue to pay their employees and assist with certain other expenses resulting from the COVID-19 pandemic.

  • New York Extends Moratorium on Evictions and Tolling of Statute of Limitations
    May 11, 2020

    On May 7, 2020, New York State Governor Andrew Cuomo signed Executive Order No. 202.28 (the Executive Order), extending the existing moratorium on evictions and foreclosures for an additional 60 days. The Executive Order also extended time periods set forth in certain prior executive orders, including tolling all statutes of limitations until June 6, 2020.

  • Second Circuit Enhances Enforcement of Arbitration Subpoenas in Federal Court
    May 8, 2020

    The U.S. Court of Appeals for the Second Circuit (covering New York, Connecticut and Vermont) has issued an opinion that enhances the effectiveness of arbitration as an alternative to litigation. This ruling makes it easier to use the federal courts to enforce subpoenas issued by arbitration panels.

  • Managing Patent Portfolio Costs
    May 8, 2020

    Prosecuting and maintaining a patent portfolio costs many organizations millions of dollars. These costs should be continuously managed and controlled. However, many organizations allow these tasks to slip when times are good. Under the current circumstances, it is worth revisiting some ideas that go beyond the basics of implementing and practicing a good patent management system.

  • SBA Issued Additional FAQ on Paycheck Protection Program on May 6, 2020 – Guidance Your Business Should Know
    May 7, 2020

    Under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), the Small Business Administration (SBA) is tasked with administering the Paycheck Protection Program (PPP), the loan program intended to allow employers to continue to pay their employees and assist with certain other expenses resulting from the COVID-19 pandemic. As the PPP went into immediate effect without the standard comment period, the SBA continues to issue additional guidance in the form of Frequently Asked Questions (FAQs) and responses. The most recently updated FAQs, current as of May 6, 2020, are available here. Importantly, the government will not challenge actions that borrowers and lenders take consistent with the guidance in effect at the time.

  • USPTO Further Extends Certain Patent and Trademark Deadlines to June 1, 2020; U.S. Copyright Office Extends Deadlines to July 10, 2020
    May 6, 2020

    In a follow up to our alert issued on April 2, 2020, in accordance with The Coronavirus Aid, Relief and Economic Security Act (CARES Act), on April 28, 2020, United States Patent and Trademark Office (USPTO) Director Andrei Iancu issued public notices regarding the further extension of certain patent and trademark deadlines to June 1, 2020.  

  • U.S. Citizenship and Immigration Services District Offices to Open on June 4 and Relax Agency Rules In Light Of COVID-19 Pandemic
    May 6, 2020

    U.S. Citizenship and Immigration Services (USCIS) recently announced its intention to begin reopening its nationwide district offices on or after June 4th.  District offices generally handle adjustment of status interviews for family and employment-based immigrant visa applicants, citizenship interviews and swearing-in procedures, as well as biometrics processing related to these applications.

  • SBA Issues Additional FAQ on Paycheck Protection Program
    May 5, 2020

    Under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), the Small Business Administration (SBA) is tasked with administering the Paycheck Protection Program (PPP), the loan program intended to allow employers to continue to pay their employees and assist with certain other expenses resulting from the COVID-19 pandemic.

  • REMINDER: New York Employers Should Use This Form When Terminating/Furloughing Employees OR Reducing Length of Workweek!
    May 4, 2020

    Employers in New York State must provide any employee whose employment is ending (either permanently or until recalled) or who will be working less than four days per week and earning less than $504 with the following information: New York State Employer Registration Number, Federal Employer Identification Number (FEIN), Employer Name, and Employer Address.




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