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Employers Cannot Pay Employees With Stock or Equity In Lieu of Cash 09/30/2015

Posted by Morse, Barnes-Brown Pendleton in Employment, Legal Developments.
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wht-logo[2]A company with a temporary cash shortage might be tempted to compensate employees with an ownership interest in the company (stock or equity) instead of with cash.

But, is this practice legal? Generally, the answer to this question is no. Under state and federal law, employees must be paid at least the minimum wage in cash. Providing equity does not fulfill this requirement.

An exception to this rule is made, however, if the employee comes within the exemption for executive-business owners provided for in the federal Fair Labor Standards Act (“FLSA”).

To be exempt as an executive-business owner under the FLSA, an individual must (1) be employed in a bona fide executive capacity, (2) own at least a 20% bona fide interest in the business and (3) be actively engaged in the management of the business.

Unless an employee meets each of these requirements, paying in equity alone could result in significant liability for the employer, as well as possible individual liability for the president, treasurer, and individual “officers and agents” of the employer’s corporate entity.

For further help in determining whether your employee comes within the executive-business owner exemption or questions about paying employees with equity, contact a member of our Employment Law Group.

10 Points for Reviewing Executive Employment Agreements 09/22/2015

Posted by Morse, Barnes-Brown Pendleton in Employment, New Resources.
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Employment Attorney Scott ConnollyAn executive’s employment agreement defines expectations regarding role, responsibilities and performance. It also establishes key contractual obligations for the executive and the employer concerning compensation and benefits, equity grants, the length or term of employment, early termination and its consequences, post-termination restrictions, and dispute resolution.

Here are 10 important considerations when reviewing an executive employment agreement.

For more information on this topic, please contact Scott J. Connolly.

L-1B Denials on the Decline: A new dawn of reasonableness? 09/03/2015

Posted by Morse, Barnes-Brown Pendleton in Immigration.
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By John J. GalliniGrant W. Godfrey

On August 28, 2015, the U.S. Citizenship & Immigration Services (“USCIS”) released its performance data related to the adjudication of L-1B Immigration Attorney John Gallini“specialty knowledge” worker petitions through the end of the third quarter of Fiscal Year 2015.  The L-1B visa is an important visa that enables multinational companies to transfer workers to the U.S. who have been employed abroad with a qualifying, related entity if the worker has been employed in a position that requires noteworthy or advanced knowledge of the company’s products and procedures.

A review of the data shows that since the start of Fiscal Year 2015 (i.e. October 1, 2014), USCIS denials of L-1B petitions are on the decline, with the denial rate dropping from 30% to approximately 20%.  The fact that one fifth of all L-1B petitions filed can expect a denial is still sobering.  However, the downward trend is somewhat encouraging considering that according to data for Fiscal Years 2003 through 2011 denial rates had increased 500% from a low of 6% in Fiscal Years 2005 and 2006 to a high of over 30%.

One likely explanation of this downward trend in denials stems from President Obama’s executive order signed in November of 2014. The executive order included a directive to USCIS to implement better guidelines for its adjudicators to use when evaluating L-1B petitionsImmigration Attorney Grant Godfrey and to create a more uniform and predictable standard.  On August 17, 2015, USCIS released a new L-1B Adjudications Policy Memorandum.  While the new policy memorandum appears to adopt a relatively restrictive definition of “specialized knowledge”, it at least does so in a more predictable way.  The jury is still out on how USCIS will go about implementing the policy memorandum.  It is our hope that USCIS will continue to educate its adjudicators on the importance of the L-1B visa program as well as on Congress’ intent to facilitate knowledge transfer from key employees.  It is also our hope that the related government agencies continue to evaluate their standards to ensure the fair treatment of workers who drive economic innovation.

For more information on this topic please contact John Gallini or Grant Godfrey.

MBBP’s Faith Kasparian’s Article Draws National Interest 09/01/2015

Posted by Morse, Barnes-Brown Pendleton in Privacy and Data Security.
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IP Licensing and Trademark Attorney Faith KasparianMBBP Senior Attorney Faith Kasparian’s article on M&A privacy and compliance concerns (M&A Privacy and Compliance with Applicable Privacy Laws and Sharing of Customer Information) drew the attention of Reporter Katie Rucke of Communication Daily, who consequently called upon Faith to comment for a story Ms. Rucke was preparing for her publication. Ms. Rucke’s story, entitled Privacy Policies Should Say what Happens in M&A, Experts Say, appears in the August 17, 2015 edition of “the Daily”, as the “news source for communications regulation” is familiarly known.

The premise of Ms. Rucke’s story, that “a clause about the sale or transfer of data in the event of a merger, acquisition or bankruptcy should be included in every company’s privacy policy…”,  was validated by Faith’s stance. “If a privacy policy is too vague,” Attorney Kasparian is quoted as saying, “a company runs the risk that the disclosure that its data could be sold or transferred isn’t sufficiently clear, and the deal could fall through.”  Faith goes on to cite the example of a dating company in Texas which wanted to sell its list of users, but the privacy policy was found to be so ambiguous that the transaction was called off.

In the Daily story, Faith also authoritatively comments on other notable aspects of the privacy policy issue, such as a weak company privacy policy bringing down the selling price, and warns about the consequences of the FTC going after unfair and deceptive practices regarding these policies. To learn more, read the full article which can be found here.

IC-DISC Structure Provides Permanent Tax Deferral for Exporters 07/07/2015

Posted by Morse, Barnes-Brown Pendleton in Taxation.
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Tax Attorney Robert FinkelExporters, are you taking full advantage of an important U.S. export incentive to achieve Federal income tax savings, known as the Interest Charge Domestic International Sale Corporation or “IC-DISC”? If not, this short but informative article describes how IC-DISCs generate Federal income tax savings for exporters and the basic IC-DISC requirements.

Please contact the article’s authors, Robert M. Finkel and Diana C. Española, to learn more about IC-DISCs.Tax Attorney Diana Espanola

Recent Amendment to Delaware General Corporation Law 07/06/2015

Posted by Morse, Barnes-Brown Pendleton in Legal Developments, Public Companies.
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By Joe Marrow

Corporate Attorney Joseph MarrowAs expected, on June 24, 2015, Delaware Governor Jack Markell signed into law legislation amending the Delaware General Corporation Law (DGCL) that will (1) prohibit “fee shifting” provisions in corporate “charter documents” (certificate of incorporation and by-laws) and (2) permit the use of forum selection clauses in charter documents.  The amendments become effective August 1, 2015.

The prohibition against “fee shifting” provisions was adopted in response to the Delaware Supreme Court’s 2014 decision in ATP Tour, Inc. v. Deutscher Tennis Bund (ATP Tour).  In ATP Tour, the Delaware Supreme Court upheld a by-law provision that required that a party suing a nonstock corporation must pay attorneys’ fees and other costs related to intracorporate litigation.  As a result of the ATP Tour decision, many Delaware stock corporations adopted “fee shifting” provisions in by-laws.  The legislation amending the DGCL prohibits the use of “fee shifting” provisions in the charter documents of Delaware stock corporations (the new legislation does not impact the use of such provision in nonstock corporations).  New DGCL Section 109(f) provides that a certificate of incorporation may not contain any provision imposing liability on a stockholder for the attorneys’ fees or costs of any other party in connection with an “internal corporate claim.”  Similarly, new DGCL Section 109(b) provides for the same prohibition in by-laws.  New DGCL Section 115 defines internal corporate claims as “claims, including claims in the right of the corporation, (i) that are based upon a violation of a duty by a current or former director or officer or stockholder in such capacity, or (ii) as to which this title confers jurisdiction upon the Court of Chancery.”  The amendment to the DGCL does not prohibit privately-negotiated contractual fee-shifting provisions (i.e., as contained in a stockholders agreement).

In an effort to limit litigation filed in multiple jurisdictions, many Delaware corporations have adopted forum selection clauses in their charter documents.  These clauses require that litigation asserting “internal corporate claims” may be brought exclusively in Delaware courts.  The new legislation codifies the Delaware Chancery Court’s holding in Boilermakers Local 154 Retirement Fund v. Chevron Corporation in which the court upheld the validity of a Delaware corporation’s adoption of a forum selection clause in its corporate by-laws.  New DGCL Section 115 authorizes Delaware charter documents to require that “internal corporate claims” be brought exclusively in Delaware courts.  The amendment to the DGCL does not prohibit Delaware corporations from selecting a forum other than Delaware as an additional forum to hear internal corporate claims.  In addition, the new legislation does not prohibit parties from privately contracting for the selection of a forum outside of Delaware as an exclusive forum to hear such disputes.

Delaware corporations should carefully review existing charter documents to determine if amendments are warranted by the new legislation.

Any questions regarding this topic, please feel free to contact Joe Marrow.

Bureau of Economic Analysis – Five-Year Benchmark Survey 06/25/2015

Posted by Morse, Barnes-Brown Pendleton in Corporate, Legal Developments.
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By Joshua E. French

frenchWhat is this?

The Bureau of Economic Analysis (BEA) regularly analyzes data related to US investment in foreign corporations.  Many large companies are specifically requested to provide data which is included in semi-annual and annual reports.  Every five years, however, the BEA produces a more comprehensive five-year benchmark survey (the last one occurred for fiscal year 2009).

How does this affect me?

At the end of last year, the BEA adopted a new rule pursuant to the International Investment and Trade in Services Survey Act, which changed the requirements for who had to report data for the benchmark survey.  Whereas prior benchmark surveys only required responses from those companies specifically requested by the BEA, the new rule mandates that U.S. Persons (including individuals, business entities, trusts, funds, etc.) that owned, directly or indirectly, at least 10% of the voting securities of a “Foreign Affiliate” (essentially any entity governed by the laws of another country) during 2014, must complete the reporting requirements for themselves and each such foreign affiliate.

What are some examples?

  • A U.S. parent entity with foreign subsidiaries.
  • The general partner of a U.S. private fund which has investments in foreign portfolio companies.
  • A U.S. person which manages an offshore private fund.

What if I don’t fill it out?

Failing to file could result in civil penalties of up to $25,000 or injunctive relief.  Willful failure to file could even result in criminal penalties of up to a $10,000 fine and imprisonment for up to one year.

What does this report entail?

Each U.S. Reporter must file one BE-10A form for its domestic consolidated business.  If the domestic business enterprise’s total assets, sales or gross operating revenues excluding sales taxes or net income after taxes exceeds $300 million (either positive or negative), you must complete the entire form.  If the U.S. Reporter doesn’t meet this threshold, it only needs to report certain sections.  The BE-10A form asks for information regarding the U.S. Reporter’s business sector, sales and employment information, contract manufacturing services, financial data (limited if the $300 million threshold is not met, more significant if the threshold is met) and import and export data.

What about for the foreign affiliates?

For each “Foreign Affiliate” for which the U.S. Reporter is required to provide data, you must file a Form BE-10B, BE-10C or BE-10D.

  • You file a Form BE-10B if the Foreign Affiliate (i) is majority-owned by the U.S. Reporter AND (ii) its total assets, sales or gross revenue (excluding taxes) or net income (after foreign income tax) exceed $80 million (positive or negative).
  • You file a Form BE-10C if the Foreign Affiliate (i) (1) is minority-owned by the U.S. Reporter AND (2) its total assets, sales or gross revenue (excluding taxes) or net income (after foreign income tax) exceed $80 million (positive or negative); OR (ii) if its total assets, sales or gross revenue (excluding taxes) or net income (after foreign income tax) exceeds $25 million but is less than $80 million (positive or negative); OR (iii) if the Foreign Affiliate is the parent of another Foreign Affiliate which has to file a Form BE-10B or BE-10C.
  • You file a Form BE-10D if the Foreign Affiliate doesn’t meet any of the above criteria.

The BE-10B is extremely detailed, seeking information regarding location, when it was formed, the ownership breakdown, what industries it is involved in, financial and operating data, and investments and transactions between the U.S. Reporter and the Foreign Affiliate.  The entire form is 24 pages and you would have to complete one form for each Foreign Affiliate that meets the criteria set forth above.

The BE-10C is slightly less burdensome (16 pages) and covers much of the same information as above, with slightly less detail.

The BE-10D is very straightforward.  A U.S. Reporter can list every Foreign Affiliate which meets the criteria for BE-10D on one form and only needs to list for such affiliate its name, location, industry code, number of employees, the U.S. Reporter’s ownership percentage, total assets, total liabilities, gross revenues, net income or loss after income tax, and any intercompany debt between the Foreign Affiliate and the U.S. Reporter.

Is this confidential?

Yes.  The BEA is not permitted to identify the individual respondents to the Benchmark Survey and may not share responses with other government agencies (including the IRS).  The information provided may only be used for analytical and statistical purposes.

When is it due?

The deadline is June 30, 2015.  There is an opportunity to request an extension through no later than August 31, 2015, but the request must be filed by June 30, 2015.

For more information contact Josh French.

M&A Video Clip: Investment Banker Engagement Letters 06/22/2015

Posted by Morse, Barnes-Brown Pendleton in Corporate, Legal Developments, M&A, New Resources.
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The second video in MBBP’s M&A Clip Series addresses the necessity of Investment Banker Engagement Letters. Corporate attorney Shannon Zollo gives a brief overview.

Catch Shannon next week discussing another common issue in M&A transactions: Cash vs. Equity


Did you miss last week’s topic? No problem. Check our archive.

Hot Off the Press: Basic Tax Issues In Choosing a Business Entity 06/18/2015

Posted by Morse, Barnes-Brown Pendleton in Legal Developments, New Resources, Taxation.
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Tax Attorney Robert FinkelHot off the press! MBBP tax attorneys Robert Finkel and Diana Española recently released an updated version of their article entitled “Basic Tax Issues In Choosing a Business Entity”. This article provides insight on numerous factors to consider when choosing to start a business as a C corporation, S corporation or LLC.

The full article can be accessed here.

Please feel free to contact Robert and Diana directly with any questions on this topic.Tax Attorney Diana Espanola

VIDEO: Common Issues in M&A Transactions: Deal Structure 06/15/2015

Posted by Morse, Barnes-Brown Pendleton in Corporate, Legal Developments, M&A, New Resources.
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Head on over to MBBP’s YouTube page and enjoy the 1st in our 2015 M&A Clips Series. Attorney Scott Bleier discusses Deal Structure and other common issues in M&A transactions, as well as practical information on how to avoid complicated, expensive and time-consuming pitfalls.

Make sure to visit the M&A Blog too. You won’t want to miss Video 2 – Investment Banker Engagement Letters!

Also – have you registered for next week’s seminar: Tax Issues in M&A Transactions? Space is filling quickly!


MBBP Attorneys Deliver Live Broadcast for myLawCLE 06/15/2015

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Events, M&A.
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IMG_1232myLawCLE develops hundreds of new CLE programs each year and covers a wide-variety of legal topics from civil litigation to criminal law to federal programs.

MBBP Attorneys Mark J. Tarallo and Robert M. Finkel spoke today for myLawCLE. The topic of discussion was LLCs vs S-CORPs: Tax Considerations, Non-Tax Differences & Common Mistakes to Avoid. The live broadcast also included 1 hour of ethics.

If you didn’t have a chance to sit in on the broadcast (or even if you did) and would like to learn more, you can meet both Mark and Robert on June 26th where they, along with a distinguished panel, will discuss Tax Issues in M&A Transactions.

Visit our event page for more information.

MBBP’s Joe Martinez to Discuss Fundamentals of Raising Start-Up Capital Through the Internet – Upcoming MCLE Program 06/12/2015

Posted by Morse, Barnes-Brown Pendleton in Corporate, Events, Public Companies.
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Corporate Attorney Joseph MartinezMBBP Corporate Attorney Joseph R. Martinez will be among the faculty presenting at MCLE New England‘s upcoming program “Fundamentals of Raising Start-Up Capital Through the Internet” on Thursday, June 18th from 8:00 am to 12:00 pm.

In this new program, leading practitioners in the field will analyze the legal and business points of internet-based fundraising in a small, highly-focused, fast-paced conversational setting.

To learn more or to register for this event, please visit MCLE.

For more information, please feel free to contact Joe Martinez directly.

MBBP Has Busy Month with a Number of Noteworthy Deals 06/04/2015

Posted by Morse, Barnes-Brown Pendleton in Client News, Deal News, M&A.
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VirginMBBP Client Virgin Pulse received $92 Million in venture financing from Insight Venture Partners enabling Virgin Pulse to accelerate the growth of the market-leading products that replenish and recharge employees by providing tools that build better habits.

imagesIn addition Serruya Capital Partners, a Toronto based private equity firm, acquired MBBP Client Tivoli Audio, a global premium audio products company. This complex transaction required engagement with foreign legal counsel in Europe.

Capping off the month was the acquisition of MBBP Client Diversified Project Management, a construction management services firm to STV, a national construction management firm.M0785161

Shannon Zollo was the lead corporate attorney on MBBP’s team.

Morse, Barnes-Brown & Pendleton served as counsel to all three clients, and advised them in connection with the structuring, negotiation and documentation of these transactions.

To learn more, read the full press release.

MBBP Attorneys to Host Office Hours at TechSandBox 6/4/2015 06/03/2015

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Corporate, Events.
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IP and Technology Licensing Attorney Howard ZaharoffOn June 4th MBBP Attorneys Howard Zharoff and Daniele Ouellette Levy will host Office Hours at TechSandBox providing legal guidance on topics that include copyright, trademark and licensing work. These pro bono sessions give you access to experts in topics such as intellectual property, business formation, benefits, taxes, marketing, sales  funding, IT and technology commercialization. Access is offered to Members and Non-members as space allows.

Corporate Attorney Daniele Ouellette LevySign up today to reserve your time slot by visiting TechSandBox!



Employment Law Alert: Sick Time Law Update 05/19/2015

Posted by Morse, Barnes-Brown Pendleton in Employment, Immigration, Legal Developments, New Resources.
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Recently, Massachusetts Attorney General Maura Healey has announced a transition policy under which employers who offer sufficient sick leave or paid time off to workers now have a six-month transition period in which to bring their policies into compliance with the new Massachusetts paid sick leave law. In order to qualify for this safe harbor, an employer’s policy must be in effect as of May 1, 2015, and follow guidelines provided.

To learn more about the transition policy, please see our Employment Law blog.

MBBP Clients Among BBJ’s Honorees – “Best Places to Work of 2015” 05/04/2015

Posted by Morse, Barnes-Brown Pendleton in Client News, Computer Software & Hardware, Events, Industries, Internet and E-Commerce, Public Companies.
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2015-04-30_15-23-12On Thursday, April 30th, the Boston Business Journal announced the 80 honorees for its annual Best Places to Work of 2015 program. This year’s employers were divided among five different categories based on company size, and were selected based on survey responses provided by employees. The BBJ will recognize this year’s honorees on June 18th at the Citi Performing Arts Center.

Among the 80 nominees, are several MBBP clients:

Congratulations to all! View the full list of “Best Places to Work of 2015“.

Employment Law Update: Proposed Sick Leave Regulations 04/30/2015

Posted by Morse, Barnes-Brown Pendleton in Corporate, Employment, Legal Developments, New Resources, Public Companies.
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As we previously advised clients, on November 4 Massachusetts voters approved a ballot measure entitling employees to earned sick leave, which goes into effect on July 1, 2015. The Massachusetts Attorney General recently issued proposed regulations on the application and enforcement of the new law.

To learn more about the MA Sick Leave Law or the proposed regulations, please visit our Employment Law blog.

MBBP to Sponsor Upcoming TiE Startup Con 04/28/2015

Posted by Morse, Barnes-Brown Pendleton in Events, M&A, MBBP news, Nonprofit, Public Companies, Telecommunications & Networking, Venture Capital & Private Equity.
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2015-04-23_9-30-48MBBP is proud to sponsor TiE Startup Con, taking place at the Cambridge Marriott on Friday, May 1st. The Indus Entrepreneurs (TiE) is a non-profit, global community supporting entrepreneurs all over the world by offering education, mentorship, networking, and funding opportunities. TiE’s upcoming conference seeks to help early-stage entrepreneurs along their journey to launch and build their own companies. It will provide several companies with the opportunity to negotiate with some of Boston’s top angel investors for access to valuable capital. With upwards of 600 annual attendees, the conference boasts three tracks focusing on the “Entrepreneur’s Journey”, “Tales from the Start-up Trenches”, along with traditional insight into “What’s Hot in Tech and Pharma in 2015″.

Find out what all the excitement is about, learn more and register for TiE Startup Con!

MBBP Attorney to Present at Upcoming MCLE Program – Primer on Preparing Massachusetts & Delaware LLC Documents 04/20/2015

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Corporate, Events, Legal Developments, Taxation.
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Corporate and Tax Attorney Charles Wry, Jr. MBBP Attorney Charles A. Wry, Jr. will be among faculty presenting at MCLE New England’s upcoming program “Primer on Preparing Massachusetts & Delaware LLC Documents” on Tuesday, May 5th from 2:00 pm – 5:00 pm.

The panel will debate the pros and cons of LLCs and corporations, discuss basic tax and business issues presented by LLCs, identify specific advantages and disadvantages of LLCs, and report on common mistakes and traps for the unwary in forming and advising LLCs—with special emphasis on drafting LLC agreements. Panelists will also discuss single member LLCs, combinations of LLCs with other business entities, “employee equity participation” for LLCs, “piercing the veil” of an LLC, dissolution of LLCs, and the differences between the Delaware and Massachusetts LLC statutes.

To register for this event, please visit MCLE.

For more information regarding this topic, please feel free to contact Charles A. Wry, Jr. directly.

Employment Tip of the Month 04/14/2015

Posted by Morse, Barnes-Brown Pendleton in Employment, Legal Developments, New Resources.
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Last month’s Tip of the Month reminded employers that communicating and maintaining an overtime policy can minimize liability for unauthorized overtime hours. This month, we focus on a second way employers can protect against wage and hour liability: the inclusion of a payroll deductions policy to take advantage of the “safe harbor” protection against liability for misclassification of employees based on the failure to pay employees on a salary basis.

To read our full Tip of the Month, please visit our Massachusetts Employment Law blog.


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