Reinhart Boerner Van Deuren s.c.

Reinhart Boerner Van Deuren manages our clients’ business needs with innovation, focus and commitment. We serve as attorneys and business law counselors to public and privately held corporations, financial institutions, family-owned businesses, retirement plans, exempt organizations and individuals in trusts and estate matters.

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The Proposal On June 23, 2020, the U.S. Department of Labor (DOL) proposed new regulations to govern decisions by fiduciaries at private pension funds when considering environmental, social and governance (ESG) factors in making investment decisions under the Employees Retirement Income Security Act (ERISA). Citing prior conflicting DOL guidance, the proposal questioned materiality of ESG factors and built the proposal on a stated belief that “ESG investing raises heightened concerns under ERISA… the growing emphasis on ESG investing may be prompting ERISA plan fiduciaries to make investment decisions for purposes distinct from providing benefits to participants and beneficiaries and defraying…
As the end of the year nears, a U.S. subsidiary may try to repatriate cash to its foreign parent. Repatriation may occur in several different methods with each having advantages and disadvantages. Most methods to repatriate will incur a 30 percent withholding tax, unless reduced by an applicable treaty. Dividends are the simplest way to repatriate, but are usually tax inefficient. A U.S. subsidiary cannot deduct a dividend from taxable income. Moreover, a dividend will typically incur the highest withholding taxes under tax treaties. Repatriating via interest payments is tax efficient – the U.S. subsidiary can deduct the interest, which…
HEALTH AND WELFARE PLAN DEVELOPMENTS Agencies Issue Final Transparency in Coverage Rule On October 29, 2020, the U.S. Department of Health and Human Services, the U.S. Department of Labor and the U.S. Department of the Treasury (collectively, the Departments) published the final version of the Transparency in Coverage rule. First proposed in November 2019, the rule imposes new transparency requirements on group health plans and health insurers. The final version of the rule is largely consistent with the proposed version, but modifies certain definitions and procedures to clarify requirements. Under the final rule, most health insurers offering non-grandfathered health insurance…
Probate is the court-supervised process by which a deceased individual’s assets are transferred after death. Assets that are titled in an individual’s sole name at death without an appropriate beneficiary designation become part of that decedent’s probate estate and must make their way through probate. The goal of the probate process is to protect the rights of heirs, beneficiaries and creditors. Probate can be costly and time consuming, making it an undesirable process. Because it is court-supervised, documents filed with the court (such as the decedent’s will and an inventory of the decedent’s probate property) become public record. Expenses generally…
On October 15, 2020, the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announced its decision to postpone the transition of Wisconsin’s Hemp Pilot Research Program to the permanent Wisconsin State Hemp Plan. The permanent Wisconsin State Hemp Plan is more restrictive than the current Pilot Research Program. For example, in order to recoup some of their costs, the Pilot Research Program allows hemp farmers to sell plant stalks or other components even if their flowers test above the legal THC limit, which is a practice the Wisconsin State Hemp Plan does not permit. This and other restrictions in…
RETIREMENT PLAN DEVELOPMENTS PBGC Provides COVID‑19 Relief for Variable‑Rate Premium Filers by Extending Due Date for Prior Year Contributions On September 23, 2020, the Pension Benefit Guaranty Corporation (PBGC) issued Technical Update 20‑02 that provides additional flexibility for variable‑rate premium filers. The Coronavirus Aid, Relief and Economic Security (CARES) Act extended the due date for certain pension contributions otherwise due during 2020 until January 1, 2021, but did not provide any guidance with respect to PBGC premiums related to such contributions. Under the PBGC’s new guidance, plans may include all contributions received by January 1, 2021, in their plan assets…
The 2020 General Election is less than a month away and like most facets of our daily lives, it will be impacted by the coronavirus pandemic. Although many people are voting early or absentee, those voting in-person may experience longer wait times as a result of safety and social distancing measures and due to the potential of short-staffed polling sites. As a result of shortages of election officials during the prior elections in 2020, municipalities are actively recruiting new election officials to compensate for the existing poll workers in high-risk categories who have chosen not to serve during the COVID-19…
On September 17, 2020, the U.S. Patent and Trademark Office (Patent Office) launched a new pilot program in an effort to incentivize inventors to find solutions to COVID-19. Under the new pilot program, filing fees for provisional patent applications may be deferred and, in some cases, need not be paid at all if certain conditions relating to COVID-19 are met. The pilot program is reserved for provisional patent applications filed under 35 U.S.C. 111(b). Nonprovisional patent applications or international applications designating the United States are not eligible for participation. Currently, inventors enjoy the economic advantage provided by the patenting right…
On September 17, 2020, the U.S. Patent and Trademark Office (Patent Office) launched a new pilot program in an effort to incentivize inventors to find solutions to COVID-19. Under the new pilot program, filing fees for provisional patent applications may be deferred and, in some cases need not be paid at all if certain conditions relating to COVID-19 are met. The pilot program is reserved for provisional patent applications filed under 35 U.S.C. 111(b). Nonprovisional patent applications or international applications designating the United States are not eligible for participation. Currently, inventors enjoy the economic advantage provided by the patenting right…
As 2020 is coming to a rapid close and business losses are looming, noncorporate taxpayers should consider whether their businesses will generate net operating losses (NOLs), and whether any loss limitation rules will prevent them from utilizing these losses on their individual returns. Several months ago, we alerted clients to the recent change in NOL rules. Under the CARES Act, NOLs generated in tax years beginning after December 31, 2017 and before January 1, 2021 (i.e., 2018, 2019 and 2020 for calendar year taxpayers), can be carried back five years, and carried forward indefinitely with no limitation. For noncorporate…
The COVID-19 pandemic has caused significant challenges to M&A transactions. Negotiations have crumbled, closings have been delayed and overall M&A activity has declined. While uncertainty remains about when M&A activity will return to normal, it appears that M&A litigation will increase in the coming months. Cases are being filed across the country as buyers and sellers who entered into M&A deals prior to—or in the early stages of—the pandemic seek legal relief to enforce or excuse obligations under their respective agreements. One of the more talked about disputes involves Victoria’s Secret owner, L Brands, who sued Sycamore Partners after Sycamore…
RETIREMENT PLAN DEVELOPMENTS IRS and DOL Release Guidance Addressing Changes Under the SECURE Act IRS Publishes Notice 2020-68 Addressing the Bipartisan American Miners Act and SECURE Act The Internal Revenue Service (IRS) released Notice 2020‑68 addressing a variety of provisions in the Bipartisan American Miners Act and the Setting Every Community Up for Retirement Effectiveness Act (the SECURE Act). Offering a Cash or Deferred Arrangement to All Long‑Term, Part‑Time Employees. The SECURE Act requires all sponsors of defined contribution plans offering a cash or deferred arrangement to permit long‑term, part‑time employees to begin participating in the plan solely for the purpose of…
On September 8, 2020, the U.S. District Court for the Southern District of New York issued an order that effectively halts the enforcement of the U.S. Department of Labor’s (DOL) recently promulgated rule regarding joint employment under the Fair Labor Standards Act (FLSA). This ruling impacts staffing agencies, subcontractors and entities whose employees perform work for the benefit of another entity. The Court Strikes Down the DOL’s Test In March 2020, the DOL clarified and limited the circumstances under which employers could be held liable for minimum wage and overtime violations under the joint employer rule. It adopted a four-factor…
On September 16, 2020, the U.S. Department of Labor (DOL) Wage and Hour Division published revisions and clarifications to the April 1, 2020, temporary rule regarding public health emergency leave under the Family and Medical Leave Act (FMLA) that has assisted families in dealing with medical emergencies arising out of the COVID-19 pandemic. Part of this emergency medical leave was created by the March 2020 Families First Coronavirus Response Act (FFCRA) and is set to expire on December 31, 2020. An August 3, 2020 Southern District Court of New York decision found certain provisions of the temporary rule under FFCRA invalid. Most…
On September 8, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) once again updated its pandemic guidelines, this time to include additional information on COVID-19 screening and testing in the workplace, confidentiality, accommodations for teleworking employees and discrimination. Employers should be aware of the following updates: COVID-19 Testing and Screening in the Workplace An employer may ask all employees physically entering its workplace if they have COVID-19 or symptoms associated with COVID-19 and if they have been tested for COVID-19. However, an employer is generally not permitted to ask these questions to teleworking employees because they do not pose a…
On September 11, 2020, the U.S. Department of Labor (DOL) issued revised Families First Coronavirus Response Act (FFCRA) regulations in response to Judge J. Paul Oetken’s decision on August 3, 2020, in State of New York v. United States Department of Labor. As described in more detail below, employers should take immediate note of two key changes that the DOL has made to its rules for enforcing the FFCRA. First, the DOL has tightened the definition of “health care provider” under the FFCRA. As a result, far more employees have the right to take leave and may not be exempted…