News & Legal Updates Archive

The Federal Trade Commission published an advanced notice of proposed rulemaking on March 11, 2022 that it is considering a rule to address deceptive or unfair marketing using earnings claims. The commission is soliciting written comment, data, and arguments concerning the need for such a rulemaking. Comments must be received on or before May 10, 2022.

The Panel of National Pathology Leaders – a non-profit think tank dedicated to advancing best practices in pathology and laboratory medicine – has released its annual workload relative value unit (wRVU) productivity report with data on wRVUs from over 1,400 pathologists.

Earlier last month, the Department of Labor (DOL) issued guidance relating to cryptocurrency as an investment option in participant directed 401(k) plans. It was the closest the DOL has ever come to saying “No way!” on a fiduciary issue.

The Departments of Health and Human Services, Labor and the Treasury (Departments) last week announced the opening of the federal Independent Dispute Resolution (IDR) system for initiating arbitration under the No Surprises Act process and updated their guidance to certified IDR entities for determining out-of-network payment amounts.

McDonald Hopkins LLC announced the opening of a new Baltimore office and the addition of member Spencer C. Pollock and associate Kelly Campbell to the firm’s growing national Data Privacy and Cybersecurity Practice Group. Pollock and Campbell will serve as the foundation of the firm’s increased presence on the East Coast. 

As part of the American Rescue Plan, Congress approved a $28.6 billion Restaurant Revitalization Fund (RRF), which provided federal grants to eligible foodservice and drinking establishments like restaurants, bars, caterers, breweries, taprooms, and tasting rooms. The RRF is administered by the U.S. Small Business Administration (SBA). Under the RFF, restaurants and bars were eligible for economic aid equal to their pandemic-related revenue loss, with a cap of $10 million per business and $5 million per location. The funds were available for certain eligible uses, like payroll and rent. On July 5, 2021, the SBA announced that applicants had been approved to receive RFF grants in the aggregate amount of $28,574,979,472, and more than 278,000 submitted eligible applications representing over $72.2 billion in requested funds.

With the recent passage of the Cyber Incident Reporting for Critical Infrastructure Act of 2022 (“Reporting Act”), many within the cybersecurity profession are looking forward to a bright future. However, this future should not be blinding of the current obligations existing under the Defense Federal Acquisition Supplement (DFARS). These DFARS clauses already require contractors to incorporate the National Institute of Standards and Technology (NIST). Applying NIST SP 800-171, contractors are responsible in implementing three layers of Incident Response. Furthermore, a representative from the Defense Contract Management Agency (DCMA) reminded contractors of some of their other current legal obligations.

Some proponents of ESOP strategies seem to tout them as the all-purpose solution to whatever ails a business owner – but sometimes, jargon obscures complexity and often results in confusion. This and subsequent articles will attempt to provide a clear explanation of what an ESOP is and how an ESOP may be used to achieve a variety of business objectives, noting potential pitfalls, risks, and solutions along the way.

The normal rule in federal court litigation generally is that the parties have to wait until the case is complete — final judgment — before having a right to appeal. Under this “final judgment rule,” interlocutory orders — orders that do not end the case — are generally not immediately appealable. There are, however, a number of exceptions to the final judgment rule. 

On March 29, 2022, Arizona Gov. Doug Ducey, signed HB 2164 into law, a first of its kind reporting requirement to the Arizona Department of Homeland Security. Specifically, HB 2164 requires entities notifying more than 1,000 individuals of a breach to submit notice to the director of the Arizona Department of Homeland Security.

With COVID-19 seeming to have abated for now, the federal agencies and Congress have turned their attention to implementing key Biden administration priorities, including those relating to employment laws, regulations, and guidance. Employers still working on normalizing operations should not ignore the heightened level of employment-focused activity taking place in Washington D.C.

Franklin C. Malemud has joined the Cleveland office of McDonald Hopkins LLC as a Member of the Litigation Department and Chair of the firm’s growing Trust and Estate Litigation Practice Group. 

McDonald Hopkins LLC has announced the election of James Giszczak and James Stief as co-presidents, with a shared vision of building on the Cleveland-based business advocacy law firm’s already successful culture that has made it a destination for a growing base of talented attorneys and venerable clients.

Matthew I. Pollack has joined the Cleveland office of McDonald Hopkins LLC as Counsel, where his years of experience in business and commercial finance law will enhance the firm’s Business Department and commercial finance team.

In her role as ARPA consultant retained by Huron County Commissioners to navigate the intricacies of the American Rescue Plan of 2021, McDonald Hopkins attorney Amanda Gordon was quoted by Norwalk Reflector reporter Mike Magnuson in his March 29, 2021 article "Could Rescue Plan money be osed for new senior center?" 

On March 8, 2022, Left Field Holdings, an operator of six Lime Fresh Mexican Grill restaurants located in Miami, filed a class-action lawsuit against Google LLC in the United States District Court for the Northern District of California. 

Energy has always been a powerful driver of the environmental, social and governance (ESG) movement, due to the universal impact of global warming. Over the last several weeks, there have been a number of energy and environmental events that could dramatically impact the course of the ESG movement here in the U.S.

McDonald Hopkins' Blair Dawson has earned the ANSI-accredited Certified Information Privacy Professional/Europe (CIPP/E) credential through the International Association of Privacy Professionals (IAPP).

Blair Dawson's move to McDonald Hopkins and the firm's national Data Privacy and Cybersecurity team was featured in a March 25, 2022 article by Celeste Bott in Law360. 

Following suit with what is expected to be a wave of states joining California in expanding data security protections for consumers and heightening requirements for businesses to protect consumer data, Colorado enacted the Colorado Privacy Act (CPA) on July 8, 2021. The law becomes effective July 1, 2023 and is similar in scope to the privacy law Virginia passed last year as well

Historically, consumer privacy in the United States has been a piecemeal effort left to the individual states. However, after California passed the California Consumer Privacy Act in 2018, other states began pushing their own version of the CCPA through their legislatures. For example, both Colorado and Virginia have already passed their versions. 

On March 15, 2022, President Biden signed the 2022 Consolidated Appropriations Act into law, allocating $13.6 billion in funding as a way to “address Russia’s invasion of Ukraine and the impact on surrounding countries.”  A significant portion of the Consolidate Appropriations Law, the Cyber Incident Reporting for Critical Infrastructure Act of 2022, ushers in changes and advancements within the federal cybersecurity landscape. 

In what is expected to be a wave of states joining California in expanding data security protections for consumers and heightening requirements for businesses to protect consumer data, Virginia was the first state to enact a consumer data privacy law. The Virginia Consumer Data Privacy Act (VCDPA), signed into law by Virginia Gov. Ralph Northam on March 2, 2021, is set to become effective January 1, 2023.

On March 21, 2022, the U.S. Securities and Exchange Commission (SEC) announced the release of its long-anticipated proposed rule for climate disclosures for U.S. public companies. The proposals would‑for the first time‑require U.S. companies to provide information on climate risks facing their businesses and plans to address those risks, along with metrics detailing companies’ climate footprint, including Scope 1, 2 and, in some cases, Scope 3 greenhouse gas (GHG) emissions.

We hope you enjoyed the first session of Private Equity Executive Webinar Series – Acquiring and Protecting Critical Information Assets in M&A Deals. The webinar (which originally aired on March 22, 2022) is now available on demand for you to watch or share. Some key takeaways from the webinar include:

• Mitigation starts before the breach.
• Follow regulatory requirements.
• Know your assets and your rights.
• Diligence is as important post-close as it is pre-close.
• Plan ahead; Don’t fall into the afterthought trap.

Read the full blog to find out more.

Government contracting is one of the best opportunities available to small and medium size businesses. But these contracts have specific clauses that are found in the Federal Acquisition Regulation (FAR) and include mandates such as requirements concerning cyberattacks and when a business has an obligation to report an incident.

Thomas Lampman has joined the Cleveland office of McDonald Hopkins as an associate in the Litigation Department, adding his experience to the firm’s Commercial Litigation team.

Blair L. Dawson has joined the Chicago office of McDonald Hopkins LLC as a Member, where her decades of in-house and corporate experience in the financial and insurance industries combined with her background in responding to data security incidents will enhance the firm’s national Data privacy and Cybersecurity Practice Group.

Stephen Robison has joined the Cleveland office of McDonald Hopkins as an associate in the firm’s Litigation Department, adding his experience to the firm’s national Data Privacy and Cybersecurity Practice Group.

McDonald Hopkins has women attorneys and professionals in every office, department, practice group and level of leadership. This Spotlight Series shines a light on those attorneys and professionals, giving everyone at the Firm the opportunity to learn more about them and their practice.

As a result of the lack of funding, providers will soon be prohibited from submitting claims to HRSA for testing, treatment, and vaccination. Starting March 22, HRSA will stop accepting new claims for testing and treatment and on April 5, HRSA will stop accepting vaccination claims.

Companies across many industries use restrictive covenants to protect their business interests against former employees. Restrictive covenants can take multiple forms: non-compete agreements that prevent former employees from working for a competitor, non-solicitation agreements that prevent former employees from soliciting customers or employees, and nonuse and nondisclosure agreements that prevent the misuse or disclosure of confidential information.  Each of these restrictions has a place in a company’s toolkit for protecting its business assets.  

This article originally appeared in Crain’s Detroit Business on March 14, 2022.

The Revised Limited Liability Act - which became effective and applicable to all LLCs in Ohio on February 11 - contains numerous revisions to the laws governing LLCs in Ohio. McDonald Hopkins has prepared a summary highlighting ertain provisions of the act that secured lenders should consider when reviewing their existing loan documents and/or making new loans to an Ohio LLC.

Generally speaking, most states will enforce non-compete clauses if they are deemed to strike a reasonable balance between the employer’s interests and the interests of the employee and the public. But non-competes and other restrictive covenants may not be enforceable in the healthcare context where they are broader than necessary to protect the employer’s legitimate business interest or deprive the public of healthcare. 

Meghan A. Collins has joined the Chicago office of McDonald Hopkins as an associate in the firm’s Litigation Department, adding her experience to the firm’s national Data Privacy and Cybersecurity Practice Group. 

McDonald Hopkins encourages any business that directly or indirectly maintains a business connection to Russia or the Covered Regions immediately increase focus on export compliance. At the same time, each business should continue to assess its customer and supplier base to ensure each one is compliant to prevent harm to the business from unexpected interruptions of supply or customer purchasing.

Kathleen Stearns has joined McDonald Hopkins LLC in Detroit as an associate in the Litigation Department, adding her experience to the firm’s Commercial Litigation team. 

In today’s business environment, virtually every company depends on one form of technology or another. And for most businesses, much of that mission-critical technology is licensed. From licensing software to manage operations and interact with customers, to licensing patents or other forms of intellectual property to develop products, technology licenses are ubiquitous in modern commerce. 

This article originally appeared in Crain's Chicago Business on March 7, 2022.

McDonald Hopkins LLC is excited to announce the remodeling of its national Private Equity Practice Area under the direction of Members Christal Contini, Marc Carmel, Jason Klein, and Ben Panter, adding a new focus on education with the launch of an Executive Webinar Series on March 22 and a full-day conference to be held in October 2022.

Attorney General Merrick Garland announced the DOJ is laser-focused on corporate criminal enforcement and will pursue that agenda through the prosecution of individuals, stating “the Department’s first priority in corporate criminal cases is to prosecute the individuals who commit and profit from corporate malfeasance.”  That is because “corporations only act through individuals” – and, as a result, prosecuting individuals is “the best deterrent to corporate crime.”

On March 23, 2022, Ohio Senate Bill 102, signed into law by Gov. Mike DeWine, becomes effective. The new law, which modifies certain of Ohio’s liquor laws, attempts to address work shortages in Ohio’s bar and restaurant industry and clarifies rules for Ohio homebrewers and homebrewing conventions.

McDonald Hopkins' Rick Hindmad and Andy Sobczyk, a senior manager with Coker Group, recently discussed the No Surprises Act on the Coker Group's Coffee with Coker podcast.  

On February 23, a U.S. District Court judge in Texas vacated surprise billing regulatory provisions that established a presumption in favor of median in-network rates to determine payment amounts for out-of-network services under the No Surprises Act arbitration process.

In early February 2022, the FTC brought its first lawsuit since 2007 against Burgerim, a fast food burger chain, for violations of the Franchise Rule. The FTC’s complaint against Burgerim alleges that the company targeted veterans as potential franchisees, claiming that the opportunity was a “business in a box” that could be operated with little to no business experience.

This case is instructive for both parties to a franchise agreement, albeit for different reasons. Franchisors operating in Ohio should be mindful of BOPA when negotiating a franchise agreement, including how representations are made in the FDD. For franchisees, however, it is stark reminder to not sit on your rights.

Carl Romano's move to McDonald Hopkins was featured in a Law360 article on February 28, 2022. 

On February 8, 2022, the U.S. Court of Appeals for the Federal Circuit determined that certain restrictions on the ability to challenge the validity of patents are enforceable. As a result of this and related decisions from the court, here are guidelines to use when attempting to contractually preclude a potential patent challenger from using IPR proceedings against your patents.

McDonald Hopkins attorneys David Kall and Amy Wojnarwsky discussed College Now's Mentor Monday program on the Tuesday, February 28 episode of WKYC TV-3's "It's About You."

A monthly segment from the McDonald Hopkins Public Law Group that asks local, regional and statewide leaders to pass along their wisdom on items of current and lasting interest. This latest installment features Laura Steinbrink, president of Emerald Built Environments, focusing on the importance of ensuring that commercial and office interiors meet the high standards set by Leadership in Energy and Environmental Design (LEED), the green building certification program used worldwide. 

McDonald Hopkins is proud to congratulate James Stief and Dean DePiero on being selected as part of Crain's Cleveland Business Notables in Law for 2022.