Insights

Raising capital is one of the most critical challenges faced by entrepreneurs and local real estate developers. Capital is the “wind in the sails” required to move any enterprise forward. While many emerging companies rely on friends and family for initial funding, seed capital rarely can accomplish more than getting a business idea off the ground. Founders need to dramatically scale up their business in order to get the attention of venture capitalists or registered broker-dealers for larger rounds of funding. There is a systemic gap between raising money from those in your immediate circle and raising larger rounds of funding with seasoned investors. Unlicensed, unregistered finders have stepped in to fill this gap despite the potential legal pitfalls involved. Under current securities law, only registered broker-dealers are allowed to take transaction-based compensation (i.e. a success fee based on the amount of money raised). Among other limitations, unregistered finders must be paid a flat fee that is not tied to the amount of funds they generate, which is problematic for many practical reasons. Entrepreneurs risk sanctions, possible rescission of offerings and other penalties in order to enter into transaction-based fee arrangements with unregistered finders to raise the capital they so desperately need.  

The Office of Civil Rights (OCR) of the U.S. Department of Health and Human Services has been quite active in recent months with respect to enforcement of the health information privacy and security requirements of the Health Insurance Portability and Accountability Act (HIPAA). Below is an overview of some of OCR’s most recently announced HIPAA settlements. The details surrounding the alleged HIPAA violations and the facts that led to OCR’s investigations are instructive to covered entities and business associates seeking to review or improve their HIPAA compliance efforts. Notably, OCR’s investigations are commonly precipitated by a patient complaint to OCR or a report of a data breach, which, in recent times, is often due to cyberattacks through phishing emails or other unauthorized access of log in credentials. See the CSG Client Alert here with respect to recent ransomware threats to the healthcare industry. Some of the most common deficiencies cited by OCR are a lack of HIPAA policies and procedures and a failure to conduct a risk analysis, both of which are threshold compliance requirements. OCR’s continued, robust enforcement efforts in the midst of COVID-19 serve as a reminder to HIPAA covered entities and business associates – both large and small – that HIPAA compliance is a top priority and that failure to comply can lead to substantial penalties.  

Join CSG’s Scott A. Zuber on Thursday, December 3 from 2:30 – 3:45 PM as he participates in the American Bankruptcy Institute's Winter Leadership Conference. The panel discussion “Anatomy of a Pharmaceutical Bankruptcy Case,” will present a primer on the U.S. pharmaceutical industry, focusing on the typical capital structures of pharmaceutical/development companies versus in-pipeline companies.  

Join CSG's Francis J. Giantomasi as he moderates “Decision Making in the Era of COVID-19,” which will feature a powerhouse panel consisting of Karen J. Kessler of Evergreen Partners, Inc., Kevin J. O'Toole of The Port Authority of New York & New Jersey and Darrell K. Terry, Sr. of Newark Beth Israel Medical Center on Tuesday, December 1, from 12:00 – 1:00 PM. This Saint Peter's University Business Network program will discuss:  

Join CSG's Thomas J. Trautner Jr. on Friday, November 20, from 12:00 – 1:00 PM EST as he moderates the Urban Land Institute - Northern New Jersey's "Navigating New Jersey's Affordable Housing Landscape" program, which will cover the range of challenges that often arise for real estate developers, advocates and municipalities post-settlement.  

Michelle A. Schaap and Gregory D. Green were published in the New Jersey Law Journal with an article – "Exceeding Authorized Access Under the Computer Fraud and Abuse Act" – examining the cybersecurity law and its current status as a split issue among circuit courts across the country from an employer's perspective in the event of an employee's misuse of the business's data and systems.  

CSG's Property Taxation & Valuation Group – led by John R. Lloyd – was profiled by Real Estate NJ as part of the publication's 2020 "Top Property Tax Appeal Law Firms in New Jersey Commercial Real Estate" Spotlight.  

Dennis M. Toft, Chair of CSG's Environmental Group, was featured in a COMMERCE Magazine editorial roundtable asking environmental law and consulting leaders to share how their operations have adapted to COVID-19, as well as success stories in this environment.   

A pair of new and interesting twists in the ongoing story of lawyers resisting in-person appearances in Immigration Courts due to COVID-19 surfaced recently. First, an opinion was issued by the N.Y. State Bar Association Committee on Professional Ethics stating that an attorney could withdraw from a case if he/she had a fear of contracting COVID-19 that would interfere with effective representation. The option relied upon New York Rule of Professional Conduct 1.16 which allows withdrawal when "the lawyer's mental or physical condition renders it difficult for the lawyer to carry out the representation effectively". (This is analogous to New Jersey RPC 1.16 (a)(2) which states a lawyer "shall withdraw" from representation if "the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client.) Both provisions require an application to a tribunal, if the case is before one. Immigration Court is of course a tribunal within the meaning of the RPCs.

On August 30, 2020, the California Legislature passed AB-1281 which, if signed by Governor Newsom, will extend two key exemptions to the California Consumer Privacy Act (the "CCPA") until January 1, 2022. The extension of these exemptions, which will otherwise expire on January 1, 2021 without legislative or voter action, will come as welcome news to businesses as they continue to implement CCPA-compliant policies and procedures.

Today, July 16, 2020, the Court of Justice invalidated Privacy Shield as a means to self-certify that a business is securely and appropriately protecting personal data when transferring such data from the EU to the United States. In part, the Court found that the Privacy Shield did not adequately ensure individuals' audit rights or appropriate recourse, and therefore, the Court invalidated Privacy Shield, effective immediately. There is no grace period.