NYS DOL has provided guidance to employers on the immediate requirements for compliance with the NY HERO Act, as previously covered in our last alert.  By August 5, 2021, employers must have adopted airborne infectious disease exposure plans.  Employers face a $50 per day penalty in place for failure timely to adopt a plan.  Employers can create a plan following NYSDOL standards or use a Model Plan created by the NYSDOL.

On May 5, 2021, Governor Andrew Cuomo signed into law the New York Health and Essential Rights Act (NY HERO Act), which is intended to protect workers from airborne infectious diseases in the workplace.  The law will require employers to comply with minimum standards for workplace safety, which are to be developed, implemented and enforced by the NYS Department of Labor (NYSDOL) and the New York Department of Health (NYSDOH).  These standards, once implemented, will address testing, PPE, social distancing, hand hygiene, disinfection, and engineering controls. 


 

When former Boston Mayor and construction trades union member and leader Marty Walsh was confirmed as the 29^th U.S. Secretary of Labor on March 22, 2021, he became the first union member Secretary since the 1970s.  Walsh’s background, priorities and experience point to a significantly more pro-labor agenda than in recent years, and early action on a number of major labor initiatives, including rollbacks of Trump labor regulations. 

The “For the 99.5% Act” (introduced by Sen. Bernie Sanders) and the Sensible Taxation and Promotion (STEP) Act (introduced by Sen. Chris Van Hollen) collectively propose broad Equity changes to federal estate, gift and income tax laws that, if enacted, would significantly impact common estate planning strategies and transfer taxation. 

You've heard of fake news, but what about fake invoices?  Beware of bogus notices and invoices from imposters. 

Recently, there has been a proliferation of companies that pose as the U.S. Patent & Trademark Office (USPTO) which try to fool trademark owners into paying to them amounts needed to maintain or renew their trademarks.  These fraudsters mail trademark owners phony notices with names and typefaces so realistic that even sophisticated clients have been fooled.  

Meet our Members: The Ally Law network is built upon the strength of member firms and the individual lawyers who practice within them. This series features the Ally Law leadership team, participants in the Young Leaders Development Program, and network lawyers from across the globe.

This issue of the New York Real Estate Journal presents the opportunity to recognize the achievements of women from the following professional services and related fields in its Women in Professional Services.  

On September 16, 2020, the Securities and Exchange Commission (the “SEC” or the “Commission”) adopted amendments to Rule 15c2-11 (the “Rule”) under the Securities Exchange Act of 1934 (the “Exchange Act”), which governs the publication of quotations for securities in a quotation medium other than a national securities exchange, i.e., over-the-counter (“OTC”) securities. Among other matters, the amendments require information about issuers to be current and publicly available for broker-dealers to quote their securities in the OTC market; narrow reliance on certain exceptions from the Rule’s requirements, including the piggyback exception; add new exceptions for the quotations of securities that may be less susceptible to fraud and manipulation; and remove obsolete provisions.

On November 2, 2020, the Securities and Exchange Commission (the “SEC”) adopted a number of significant amendments to the rules under the Securities Act of 1933, as amended (the “Securities Act”), which govern the manner in which securities may be sold without registration under the Securities Act. The amendments will be effective commencing on March 15, 2021.

We are proud to partner with our colleagues at Crowell & Moring LLP in calling upon all law firm leaders and all lawyers in government to join in this call.

On November 19,  2020, the Securities and Exchange Commission (“SEC”) adopted significant amendments to the financial disclosure rules under Regulation SK of the Securities Act of 1933, as amended (the “Securities Act”).

In a sign of the critical importance that the Biden Administration attributes to global climate control, President-elect Biden, in one of his first announcements, named former Secretary of State John Kerry as Special Presidential Envoy for Climate. In this role, Secretary Kerry, who was one of the architects of the Paris Climate Agreement during the Obama Administration, will assume a seat on the National Security Council, the first time that the Security Council will include an official dedicated to combatting climate change. While Secretary Kerry’s responsibility will primarily focus on international strategy, it is expected that President-elect Biden will soon designate a domestic climate official to complement Secretary Kerry’s efforts. Shortly after the announcement, Secretary Kerry tweeted: “America will soon have a government that treats the climate crisis as the urgent national security threat it is.”

On September 23, 2020, the Securities and Exchange Commission (“SEC”), adopted amendments to Rule 14-8 under the federal proxy rules, which govern the manner in which shareholders may seek to include a proposal in a company’s proxy statement to shareholders. Rule 14a-8 requires companies that are subject to the federal proxy rules to include certain shareholder proposals in their proxy statements, subject to certain procedural and substantive requirements.       
  
The amendments will apply to any proposal submitted for an annual or special meeting to be held on or after January 1, 2022.  The amendments also provide for a transition period with respect to the ownership thresholds that will allow shareholders meeting specified conditions to rely on the current $2,000/one-year ownership threshold for proposals submitted for an annual or special meeting to be held prior to January 1, 2023.

New York State has joined New York City and Westchester County in mandating that employers provide guaranteed sick leave to employees. The New York State Sick Leave Law (the “NYSSLL”) was passed earlier this year and goes into effect on September 30, 2020. For existing employees, the leave begins to accrue on September 30 and employees may begin using sick leave under the NYSSLL on January 1, 2021. The NYSSLL guarantees all individuals employed within New York State (full-time and part-time) sick leave each calendar year based on eligibility and employer status.

New York law currently criminalizes surrogacy arrangements where a woman is paid for carrying a child, which has forced many families to travel to other states to take advantage of their compensated surrogacy regimes. That is all about to change.
 

"There will be a lot of people who will take money and they will regret that they did," said Edward Schauder, a corporate and sports attorney handling licensing and marketing issues at Phillips Nizer LLP. "No matter how much money these guys make, they are really going to need professional guidance that they really don't fall for a common pitfall."

On August 26, 2020, the Securities and Exchange Commission (the “SEC”) adopted amendments to modernize the business (Item 101), legal proceedings (Item 103), and risk factor (Item 105) disclosure requirements of Regulation S-K under the Securities Act of 1933, as amended (the “Securities Act”), which are applicable to periodic reports and registration statements filed by public companies. 
 
 

On August 26, 2020, the Securities and Exchange Commission (“SEC”), adopted  amendments to the definition of “accredited investor” in Rule 501 of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”) to add new categories of qualifying natural persons and entities and to make certain other modifications to the existing definition. According to the SEC, the amendments are intended to update and improve the definition to identify more effectively investors that have sufficient knowledge and expertise to participate in investment opportunities that do not have the rigorous disclosure and procedural requirements, and related investor protections, provided by registration under the Securities Act.

Although Washington’s NFL team hasn’t yet announced its new name, several trademark registration applicants have been trying to guess.

“I don’t think they would have done even an announcement that they were going to do a name change if they weren’t in a negotiation with the owners of the name they’re interested in,” Schauder said. “A lot of lawyers are under a tremendous amount of pressure right now, trying to get this right. Because they can’t afford to get this wrong.”  Click below for full story.

Law360 (July 14, 2020, 12:08 AM EDT) -- The Washington, D.C., NFL team is dropping the Redskins name and logo after years of resistance to pressure from Native Americans and others who say they are racist, a move that experts say signals a growing societal push to remove Native American names and imagery from sports even as legal efforts to do so have fallen short.

This week’s US Supreme Court decision that Booking.com is not generic might lead to a larger use of consumer surveys. 

Alan Behr, partner at law firm Phillips Nizer in New York City, points out that in the oral arguments the attorney for Booking.com said marks like the brand are relatively weak. Weak marks in the fashion industry aren’t a good idea, Behr says.

He notes that someone could theoretically register a domain name like menssocks.com and have a basis for protection. But he says this would still be a weak basis because someone else could register menssocks.info.

“Then you get into a lawsuit involving survey evidence and experts about whether that’s confusingly similar or not.”

Because of this, companies in fashion should be wary of picking a generic name, even if a marketing person really loves it, Behr says.

“When in doubt in fashion, go for a strong mark. It will pay itself back many times over in benefits. The fact that the court had concurring and dissenting opinions shows that when you have a mark that’s just over the line, like Booking.com, you’re going to have questions.”

Most brand owners would undoubtedly prefer not to have to argue in front of the Supreme Court to get a trademark registration in the first place. But those that do have to fight for their marks would be wise to take advantage of any evidence, including consumer surveys, that’s available to them.

“Interestingly, the owner of the mark BOOKING.COM admitted in oral argument before the court that it is a ‘weak mark,’ but  the court found it to be a mark just the same.  In my experience, marketers are rarely daunted by legal evaluations of the relative strength of marks. If a marketer loves a mark, whether it is as strong as titanium or as weak as tissue paper, he or she will usually go for it and let the law follow along as best it knows how. In this case, the law did just that.

What the case likely means is that there can be no automatic rejection of an application to register a mark that is simply a combination of a generic term such as ‘booking’ and a familiar top-level domain extension such as ‘.com.’  It does not, however, mean that any such combination would necessarily be registered as a trademark.  That is, you cannot take any generic term and add “.com” to it and say you definitely have a registrable mark for any goods or services.  Each case would still need to be examined on its own merits.  The Supreme Court noted, for example, that ART.COM is already registered as a trademark but did not make a new rule that all such combinations are automatically registrable.  What the case signifies is that, in the Internet age, top-level domain extensions, when added to generic terms might well create registrable marks.  And that is news—an important clarification from the Supreme Court of how old law applies to the new tricks of electronic commerce.”

“You cannot take any generic term and add ‘.com’ to it and say you definitely have a registrable mark”

What the case likely means is that there can be no automatic rejection of an application to register a mark that is simply a combination of a generic term such as ‘booking’ and a familiar TLD extension such as ‘.com’. It does not, however, mean that any such combination would necessarily be registered as a trademark. That is, you cannot take any generic term and add ‘.com’ to it and say you definitely have a registrable mark for any goods or services. Each case would still need to be examined on its own merits. The Supreme Court noted, for example, that ART.COM is already registered as a trademark but did not make a new rule that all such combinations are automatically registrable. What the case signifies is that, in the internet age, TLD extensions, when added to generic terms might well create registrable marks. And that is news – an important clarification from the Supreme Court of how old law applies to the new tricks of electronic commerce.

“Either they don’t have experienced people working on it, or they don’t care,” McCabe said. “It’d be interesting to see how often the provisions have been deployed. I’m betting not a lot, but I’m also betting PROs are getting more and more pressure from big artists” to enforce them, she said.

In May 2020, the Securities and Exchange Commission (“SEC”) adopted major changes (the “Amendments”) to its rules and forms relating to the historical and pro forma financial statements and information that must be provided by public companies in connection with business acquisitions and dispositions. 
 
The Amendments are effective on January 1, 2021. Voluntary early compliance with the Amendments is permitted in advance of the mandatory compliance date provided that the Amendments are applied in their entirety from the date of early compliance.

Higher EPLI rates are possible, but not in places such as New York State and New York City where these individuals were already protected, said Regina E. Faul, New York-based partner who chairs Philip Nizer LLP’s employment & labor practice.

Now, more than ever, dating relationships are formed by electronic communications.  A new dating “app” appears every other day and there are seemingly infinite amounts of online dating websites.  In the current climate, with the national stay-at-home directives caused by the Coronavirus Crisis, people are even more reliant on technology and electronic communications to form dating relationships.   Unfortunately, while methods of communication may have changed, domestic violence has not.  This is the Fourth Article in our continuing series of Family Law Issues and the Coronavirus Crisis. 

Marc Landis Landis chats with Law360 about how the firm has evolved since its inception, its operation during the coronavirus pandemic and his goals for the firm's future.

Major changes to SEC Disclosure Rules For Mining Companies Will Become Mandatory in 2021.  In October 2018, the Securities and Exchange SEC (“SEC”) adopted major changes (the “New Mining Disclosure Rules”) to the SEC’s disclosure regulations for public mining companies.  Registrants have been permitted to comply with the New Mining Disclosure Rules on a voluntary basis since 2019, but they will become mandatory for fiscal years beginning on or after January 21, 2021.  For mining company registrants that have not already begun to comply with the New Mining Disclosure Rules on a voluntary basis, it is not too early to become familiar with the new Rules.
 

As the firms are plotting their future, Marc Landis, managing partner of roughly 70-lawyer Phillips Nizer LLP, wanted to remind the firm leaders that succession planning is not a "one-time exercise."

The New York-based firm, which was founded in 1926 by attorneys Louis Phillips and Louis Nizer, has already gone through several generations of leaders, Landis said.

"Succession planning, particularly in the law firm setting, is very much an art rather than a science," Landis said.  "The relationships among attorneys at a firm, relationships between attorneys and clients, are all very personal and very specific nad need to be treated as such."

Landis said a law firm is not like an automobile factory where if all the workers left one day, the new employees would be immediately able to pick up the work by using the same machines and making the same cars. 

"The attorneys' relationships with their clients are based on the clients having confidence in their knowledge, their brainpower, their judgment and a willingness to really understand the client's needs," he added. 

In these critical weeks, you may have questions or wish to change or develop your estate plan and documents.  We are working remotely and remain available to serve you, whether you are an existing client or wish to become a new client.  This event has caused uncertainty over many procedural issues and brings new changes every day, but we actively monitor these changes and adapt as needed.

 

Meet our Members: The Ally Law network is built upon the strength of member firms and the individual lawyers who practice within them. This series features the Ally Law leadership team, participants in the Young Leaders Development Program, and network lawyers from across the globe.

A Message From Our Managing Partner, Marc Landis

One of the biggest cases of 2019 was one nobody expected: the March indictment of dozens of parents and university coaches for their parts in a national scheme to trick colleges into admitting students on false pretenses.