In affirming, the Third Circuit held that if a document makes its way into the clerk's file, then it is subject to the presumption of common-law right of access.

Certain foreign-owned or controlled U.S. businesses are eligible to apply for potentially forgivable loans under the second round of the Paycheck Protection Program ("PPP") included in the recently enacted Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act (P.L. 116-260). Applications can be submitted until March 31, 2020.

Following the latest amendment to the Construction Law, which came into effect on 19 September 2020, the maximum time in which authorities may declare a building permit or occupancy permit null and void has been reduced to 5 years.

Reporting companies will be required to file reports with the Financial Crimes Enforcement Network of the Department of the Treasury identifying all "beneficial owners" (generally any individual directly or indirectly controlling the reporting company or owning 25% or more of the ownership interests of the reporting company) and "applicants" (generally any individual filing an application to form or register the reporting company). 

On October 22, 2020, Governor Whitmer passed Public Act ("PA") 238 of 2020, outlining COVID-19 isolation/quarantine periods and prohibiting employers from taking certain actions against employees who do not report to work during those periods, as well as those who oppose violations of the act or report health violations related to COVID-19. On December 30, 2020, PA 339 of 2020 was enacted to amend sections 1, 5, and 12 of PA 238, and to add a new section 13.

The finalized rule reaffirms that independent contractors are not employees under the FLSA and are not entitled to minimum wage or overtime pay under the Act.

The Final Rule codifies previous guidance that employers are permitted to take a tip credit for any amount of time an employee in a tip-earning occupation performs work that will not earn tips, so long as that work is performed simultaneously with or within a reasonable time before or after the tipped duty.

The Act amends the Sarbanes-Oxley Act of 2002 and requires the SEC to identify reporting public companies using registered public accounting firms located in a foreign country that prevents the Public Company Accounting Oversight Board (PCAOB) from auditing the accounting firm and to prohibit trading of securities of such public companies in U.S. markets after three consecutive non-inspection years. The Act also imposes additional public disclosure obligations on foreign issuers subject to the Act. 

Act 254 also adds COVID-related safety procedures for public meetings held in-person before April 1, 2021 (assuming such in-person meetings are permitted under Michigan Department of Health and Human Services orders).

The MEU Rule still requires comprehensive due diligence to determine whether a China, Russia or Venezuela business entity is a military end user prior to the export, reexport or transfer (in-country) of any item subject to the EAR and listed in Supplement No. 2.

The Fifth Circuit held that a Texas bankruptcy court had exceeded its authority when it ordered the SBA Administrator to make a Paycheck Protection Program (PPP) loan available to a debtor in bankruptcy. We added at the time that "whether other circuits follow the Fifth's lead remains to be seen."  Now, the Eleventh Circuit has agreed with the Fifth, issuing a comprehensive opinion to explain its reasoning.

The Michigan Senate passed bills designed to allow college athletes to receive compensation for the use of their names, images, or likeness rights.

The Occupational Safety and Health Act (OSHA) commands employers to ensure that the workplace is "free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees." This "general duty clause" may impose a duty on employers to take steps to prevent employees from contracting or spreading COVID-19 in the workplace.

The amendments are designed to increase the efficiency, flexibility, and transparency of ICC arbitrations, while largely maintaining the core provisions that have made the ICC one of the most popular international arbitration institutions in the world. As a result, ICC arbitration may be an attractive option for parties who may have previously viewed ICC proceedings as too slow and expensive.

This new order effectively extends the gathering restrictions, the face mask mandate, and the contact tracing requirements in MDHHS' November 18 Order (scheduled to expire December 8) to December 20.

Employers may consider filing new Prevailing Wage Determinations (PWDs) for determinations issued between October 8, 2020, and December 1, 2020, as it is not certain that DOL will affirmatively go back and reissue these determinations based on the old wage data prior to the DOL rule.

Limited partnerships in Poland will be treated as corporations for income tax purposes – i.e., will be required to pay the corporate income tax – leading to double taxation. Unfortunately, this is not the only way in which the tax burden on business will increase in 2021.

In a relatively quiet third quarter of 2020, the Federal Circuit decided issues on joinder, estoppel, claim preclusion, and importantly, upheld the Patent Trial and Appeal Board process finding that cancellation of patent claims is not a taking under the Fifth Amendment. The Supreme Court did not issue any intellectual property-related decisions and declined to grant certiorari on several new patent cases.

To the extent that a borrower has a reasonable expectation of the amount of the loan forgiveness that will be received eventually, the borrower cannot deduct that amount of expenses paid with the PPP loan proceeds.

The Government of Ontario is encouraging all employers to develop and implement a COVID-19 Safety Plan as part of their obligation to comply with the Occupational Health and Safety Act.

The CPRA imposes new obligations relating to any personal information a business collects on or after January 1, 2022, including expanding the opt-out right to "sharing data," granting right to correct inaccurate information, or introducing data mineralization and purpose limitation obligation.

The Order prohibits "transactions" in publicly traded securities and "securities that are derivative of, or designed to provide investment exposure to such securities." These may include investments in mutual funds, exchange traded funds and other investment vehicles which directly or indirectly are invested in the listed companies.

In light of the recent surge of COVID-19 cases in Michigan, governmental agencies in charge of workplace safety and public health have issued several directives and guidance to employers and businesses in the hope of curtailing the spread of the virus.

The Ontario Court of Appeal has clarified that an employee’s past service with their former employer does not automatically transfer to a successor employer for the purposes of calculating their common law reasonable notice entitlements.

The Oct. 29 Order further defines requirements for face masks, reduces the maximum capacity limit for indoor non-residential venues without fixed seating to 50 persons, adds table seating limitations and distancing requirements for non-residential gatherings, expands mandatory contact tracing requirements, deletes certain workplace protections and posting requirements, and treats Region 6 the same as the rest of the Michigan.

A recent case demonstrates the importance of reviewing bankruptcy schedules carefully and in advance of the expiration of the time to object to claimed exemptions in a bankruptcy proceeding.

When a loan becomes distressed, it is essential for the secured lender to conduct a file review to determine if there are any deficiencies that need to be addressed. If deficiencies are not addressed, the lender’s collateral position might be jeopardized, and the lender may well encounter obstacles enforcing the loan.

Michigan Governor Gretchen Whitmer signed into law several bills on October 22, 2020, including those providing a liability shield to individuals and entities that comply with COVID-19-related government directives and offering protections for certain employees who are required to stay off work because they contract, exhibit symptoms of, or are exposed to COVID-19.

Many complications and impediments to your business have arisen in today's environment. However, the SEC remains vigilant and is auditing RIA Firms.

An amendment effective October 15, 2020, makes the Uniform Commercial Real Estate Receivership Act applicable generally to commercial and industrial loans that have no real estate collateral. This article summarizes some of the changes and the interplay between receivership and bankruptcy.

Public Act 228 of 2020 amends the OMA to allow public bodies to conduct electronic "virtual" meetings with remote participation for any reason through the end of 2020, and in 2021 under specific circumstances.

In the SBA Procedural Notice dated October 2, 2020, the Small Business Administration has issued mandates that may impact the ability of a recipient of a Paycheck Protection Program (“PPP”) loan to raise capital, to transfer ownership, to sell assets, or to liquidate. While the Approval Notice is strikingly broad in scope, there are ways of reducing, if not eliminating, its effect on these types of transactions.

On October 9, 2020, the Director of the Michigan Department of Health and Human Services issued an emergency order reinstating some, but not all, of the restrictions contained in Governor Whitmer's COVID-19 emergency orders that were invalidated by the Michigan Supreme Court. In this alert, we summarize many of the important features of the MDHHS Oct. 9 Order.

Before you send any communication via text, or any other app, think twice, proofread twice, take a breath, proofread again, and then ask yourself if this is the best way to communicate. Do not say something in an email or a text that you would not write in a formal letter, as these communications have the same effect as a letter.

A new Polish act introduced a number of changes aimed at cutting red tape around construction projects and giving investors greater legal protection.

Some lenders prefer to enter into pre-negotiation agreements with their borrowers and guarantors. What are the key components of these agreements, and are they worth the cost?

Since March 2020, Michigan Governor Gretchen Whitmer has relied on the Emergency Powers of the Governor Act of 1945 (EPGA) and the Emergency Management Act (EMA) as authorities for her ability to declare and extend the state-of-emergency and state-of-disaster in an effort to curtail the spread of COVID-19. On Oct. 2, 2020, the Michigan Supreme Court held that actions exceeded her emergency authority after April 30, 2020.

Ultimately, whether and when to send a default and demand letter depends on the loan documents and the circumstances presented.

EO 2020-183 permits certain indoor sport venues, theaters, and entertainment facilities to reopen, with capacity limitations, on October 9, 2020. EO 2020-184 replaces EO 2020-175, the most recent Executive Order addressing "Safeguards to Protect Michigan Workers from Covid-19" and updates guidance on workplace safety, recognizing that previously closed businesses are slated to reopen statewide on October 9, 2020.

USCIS must receive eligible adjustment of status ("Green Card") applications between Oct. 1, 2020 and Oct. 31, 2020.

Miller Canfield has assembled a PPP Loan Audit Team, which can cover the full range of issues that business and non-profit borrowers, as well as lenders, may encounter.

As a result of the finding in Waksdale, most employers will find themselves in need of revising their just cause termination provisions, or removing them altogether.

Importers desiring to file for similar relief should do so no later than Friday, September 18, 2020.

The short answer is that an agreement is enforceable against a bank when the agreement is in writing and signed by the bank. But, the answer really depends on the jurisdiction involved.

The Court found that the following provisions were invalid: (1) the requirement that there must be work available for an employee to take leave; (2) the definition of a “health care provider” that could be excluded from paid leave; (3) that an employer must consent to intermittent leave; and (4) the rule that certain documentation be provided before taking leave.

While some bankruptcy courts are conducting in-person hearings, most are conducting hearings virtually in the ordinary course, and with the same speed as if in-person.

The U.S. Court of Appeals for the Ninth Circuit recently held that in-house counsel's legal memos used to prepare an expert witness were partially protected from disclosure as attorney work product.

The protections afforded to employers by the deemed emergency leave are to be extended to January 2, 2021.

For employers who have employees still on layoff/deemed emergency, they will again have to be mindful of the time limits for a maximum layoff period as well as the risks of a constructive dismissal claim when reducing an employee's hours and/or wages.

We discuss the introduction of a 5-year time limit for declaring a building permit or occupancy permit invalid; a simplified legalisation procedure for unauthorised structures; the requirement to obtain a fire protection expert opinion when seeking a change of use; and clarifications as to when a building permit is required, when a notice of construction, and when neither.

Employers uncertain about the payroll tax deferral or looking to implement the payroll tax deferral in a manner that should reduce risk are advised to contact the authors of this article or their Miller Canfield attorney.

With many bankruptcy cases looming on the horizon as a result of the pandemic and the measures taken to contain it, prudent creditors are reacquainting themselves with their rights, including the right of reclamation.

The Department of Labor has updated its Family First Coronavirus Response Act: Questions and Answers with new guidance to address the availability of FFCRA leave for employees when children are about to return to school. Michigan's governor also updated the directive protecting workers who need to take time off for self-quarantine.

The withholding, deposit, and payment of certain employees' portion of the 6.2% Social Security tax is deferred on all compensation paid from Sept. 1, 2020, through Dec. 31, 2020.

Revolutionary changes to Poland’s construction regulations are coming into force. The amendment to the Construction Law that MPs passed is aimed to expedite construction projects, and to make construction-related decisions more stable and predictable.

EO 2020-160 reaffirms many of the prior restrictions while tightening some, and permits the opening of casinos and racetracks, effective Aug. 5. EO 2020-161 is an amended version of EO 2020-145 and adds provisions relating to safety protocols for casinos and racetracks upon reopening.

The Michigan Court of Appeals has upheld the constitutionality of the statutory deadline—imposed by the Michigan Election Law—requiring that absentee voter ("AV") ballots be received by 8 p.m. on Election Day to be validly counted.

These cases expand the SBRA to more debtors. Miller Canfield has presented to financial institutions on the SBRA and would be pleased to discuss the SBRA further with your organization.

The implications of this decision are significant because it impacts many of the thousands of foreclosure sales which occur each year in Michigan's 83 counties.

In the second quarter of 2020, the Supreme Court decided five intellectual property focused cases in which it resolved a longstanding circuit split in Romag Fasteners and opened the door to the trademark registration of "generic.com" domain names in Booking.com.

In practical terms, this judgment requires all U.S. entities to reevaluate the mechanisms they have employed to transfer personal data from the EU to the U.S. Moreover, U.S. entities that were utilizing the Privacy Shield Framework must be aware that, as of July 16, 2020, any transfer based thereon will no longer be compliant or legal.

Parties to arbitrations seated outside the United States who wish to make use of § 1782 will need to avoid courts in the Second and Fifth Circuits and instead attempt to seek evidence from non-parties in the Fourth or Sixth Circuits.

The United States Circuit Court for the Second Circuit recently affirmed that arbitrators have the authority to issue subpoenas to non-parties and that US federal courts have the power to enforce them.

On July 14, 2020, in response to a lawsuit filed by Harvard University and Massachusetts Institute of Technology, U.S. Immigration and Customs Enforcement (ICE) has agreed to rescind a policy that would have barred international students taking online-only courses from staying in the U.S. in the fall 2020 semester.

Calculation of the federal income tax credit for increasing research activities may require a taxpayer claiming the credit to prove the nature and cost of "base period" research projects conducted decades ago. 

Some considerations for franchisees operating in Ontario during the global pandemic.

As a consequence of this decision, U.S. and foreign companies entering into international contracts are well-advised to consider, at the time of contracting, whether they wish to arbitrate future disputes with nonparties to the contract.

The Court's decision buttresses the broad protection afforded to religious institutions against employment discrimination claims. As the dissent suggested, this decision might be extended to non-teacher employees of religious institutions. However, not all employees of religious institutions will automatically fall within the ministerial exception.

A new Polish amendment introduces a number of changes designed to expedite construction projects, simplify things for surveyors, make some geodetic data widely and freely accessible, improve the operation of the land and buildings register, or ensure better funding for geodesy at district level.

Even in courts where the SBA may be enjoined from barring bankrupt debtors from obtaining PPP loans, these injunctions do not necessarily translate into affirmative commands to lenders that they must make PPP loans to bankrupt debtors.

The order does not apply to foreign nationals already in the United States, or to foreign nationals who already hold a nonimmigrant visa valid as of June 24, 2020, or to asylum seekers. 

We have prepared this guide to provide a short summary of the current campaign finance laws applicable to public school ballot proposals as well as answers to commonly asked questions.

The ruling may pave the way for courts to find a partial trigger of a force-majeure provision when COVID-19 government orders merely hobble—but don’t totally destroy—a tenant’s ability to perform under the contract.

Employers should check their policies to make sure they now include prohibitions against discrimination and harassment on the basis of sexual orientation and gender identity, and should train their employees accordingly.

Subject to existing requirements as to the keeping of minutes, any open or closed meeting of the members of a public body can be held by audio or visual conference without the physical presence of a quorum of members under certain conditions.

Miller Canfield is actively tracking the current status of operations of numerous Patent and Trademark Offices (PTOs) around the world in the light of the novel coronavirus (COVID-19) pandemic. We have created and will regularly update a chart that shows the status of various countries' PTOs.

The order applies to graduate-level and higher students and researchers from the People's Republic of China ("PRC") (mainland China, not including Hong Kong, Macau, and Taiwan) applying for F or J visas or seeking entry into the United States.

As stay-home restrictions are lifted, many states and local governments are permitting businesses to open only if they are able to screen workers for symptoms of the coronavirus. Employers are put in a position to juggle work logistics, cleaning and sanitation, as well as the practicalities of health screening. A few of their most frequently asked questions are answered here.

Premium processing service provides expedited processing for Form I-129, Petition for Nonimmigrant Worker (for H, L, O, P, Q, R, and TN classifications) and Form I-140, Immigrant Petition for Alien Worker (excluding the EB-1 category for multinational executives and managers, and the EB-2 category seeking a National Interest Waiver).

On June 4, retail stores, outdoor public swimming pools, and children's day camps may open, subject to certain capacity and safety protocols being in effect. On June 8, restaurants, bars, libraries, and museums may open to the public, again with certain safety protocols, including limited capacity. Also, so long as social distancing can be accomplished, outdoor social gatherings and events of up to 100 people are now permitted.

Layoffs that have occurred during the COVID-19 pandemic will be deemed to be job protected leaves. In addition, the Regulation declares that reductions in wages and hours during the pandemic are not to be a constructive dismissal in certain circumstances.

The Government of Canada has announced various changes to the programs that it has put in place to support businesses during the COVID-19 pandemic. This brief article provides an overview of these changes and proposals.

Businesses routinely raise their prices in response to changing economic conditions and competition. Now might be a particularly dangerous time to raise prices without careful consideration of the legal consequences of pricing decisions.

Retailers and motor vehicle dealerships throughout the lower peninsula are permitted to see customers by appointment beginning on May 26, 2020.

We are providing the following Q&As to assist in determining whether a 2019 BE-10 Benchmark Survey is required and when.

The Qatar Supreme Committee for Crisis Management, in its coordinating role, has initiated legislative and regulatory actions to safeguard Qatari citizens, residents, and visitors from harm. As of May 20, 2020, these measures are in effect.

Executive Order 2020-87 extends the deadline for filing commercial and industrial property tax assessment appeals in the Michigan Tax Tribunal from May 31, 2020, to July 31, 2020. A prior board of review protest is not required for commercial and industrial appeals.

The Internal Revenue Service (“IRS”) has issued two important notices allowing employer-plan sponsors to amend their §125 cafeteria plans to provide employees with increased flexibility for elected benefits and account balances.

Michigan Governor Gretchen Whitmer signed executive orders 2020-91 and 2020-92, revising the state's Stay Home, Stay Safe Order and advancing the process to resume in-person work and activities that were temporarily suspended under the previous orders. EO 2020-91 requires a number of safeguards that employers must follow for all businesses and operations that are permitted to require their employees to leave their homes for work.

As Michigan school districts navigate their 2020-2021 budgets, with looming cuts to school aid and other consequences of the COVID-19 pandemic, we want to remind you of the available operating cash-flow borrowing options. Although the cash-flow borrowing option is a short-term tool it can be used in conjunction with other measures to help school districts weather the coming financial storm. 

The COVID-19 pandemic has wreaked havoc on brick and mortar businesses. Consumers, confined to their homes, have flocked to online markets, where products offered by patent owners often compete with infringing products from across the globe. Fighting these infringers has never been easy, but the problem has been exacerbated by the pandemic, which has caused significant delays at the courthouse.

Introducing the IP Litigation Quarterly Update, a quarterly newsletter summarizing noteworthy and interesting opinions related to intellectual property law. In this first edition covering the first quarter of 2020, the Supreme Court decided whether Congress had the authority to revoke state immunity from copyright infringement and declined to revisit what constitutes patentable subject matter under 35 U.S.C. § 101 and its Alice decision. The Federal Circuit discussed permissible considerations in obviousness determinations, took an in-depth look at inequitable conduct during patent prosecution, debated deference to opinions of the Precedential Opinion Panel at the Patent Trial and Appeal Board, and more.

The United States Department of Education’s Office for Civil Rights (OCR) released a final rule implementing Title IX of the Education Amendments of 1972 (“Title IX”). The final rule was released on May 6 and takes effect August 14, 2020.

On May 7, 2020, Michigan Gov. Gretchen Whitmer opened up manufacturing in Michigan as a part of an overall extension of the state's Stay Home, Stay Safe orders. With the new executive order, manufacturing will re-open on May 11, 2020, but the Stay Home, Stay Safe requirement will extend until May 28, 2020.

This Alert focuses on the disclosure and regulatory guidance offered by the SEC and FINRA as it pertains to SEC-regulated investment advisers and FINRA-regulated registered persons, followed by a summary of guidance from the enforcement arms of the SEC and FINRA as it pertains to protecting investors during the uncertain market events created by the pandemic.

The Order encourages public bodies holding meetings electronically to effectuate as fully as possible the purposes of the Open Meetings Act, which include promoting government accountability and fostering openness in government to enhance responsible decision-making.

Effective May 1, 2020, identity documents found in List B which expired on or after March 1, 2020, and have not otherwise been automatically extended by the issuing authority due to COVID-19, may be treated by the employer as if the employee presented a valid receipt of an acceptable document for Form I-9 purposes. 

With federal and state governments’ contemplation of plans to reopen the economy, employers should begin considering necessary and recommended steps to bring employees back to the workplace, and legal issues raised by doing so.