Category: Business Law Blog

EU Privacy Shield

EU Court of Justice Nixes the EU-U.S. Privacy Shield Framework

What is the EU – U.S. Privacy Shield?

The European Union (EU) enacted the General Data Protection Regulation (GDPR) in April 2016 and it went into effect in May 2018. The GDPR protects and covers European Economic Area (EEA) member state citizen personal data. The GDPR largely regulates the transfer of personal data to third countries. One method of effectuating a compliant transfer was the EU-U.S. Privacy Shield (Privacy Shield). The Privacy Shield permitted countries with less stringent data protection laws than the European Union (EU), such as the United States, to create a safe harbor within its “inadequate” law. On July 16, 2020, the EU Court of Justice (ECJ) declared the Privacy Shield invalid. The ECJ maintained that the Privacy Shield was not “essentially equivalent” to EEA-member state data transfer mechanisms.

Why does the Privacy Shield matter to U.S. companies?

  • Personal data is everywhere – If you are a U.S. company engaged in commerce, there is a very good chance that day-to-day transfers of consumer personal data is somehow implicated. Any personal data on an EU citizen—regardless of where they live—is subject to these laws.
  • Vendor and contractor policy – You may not readily receive and process the personal data of EEA-member state citizens, but chances are your vendors or contractors do. What is more—one of your vendors or contractors may have been relying on the now invalidated Privacy Shield framework to comply with the handling of consumer data. Additionally, they may ask you to comply with their policy.
  • Compliance still necessary – Trans-Atlantic business must go on. Companies that control and process data need to hardwire data privacy and protection measures into virtually every business process they implement under the GDPR. Moreover, the DOC’s International Trade Administration (ITA), the agency tasked with administration of the Privacy Shield framework, maintains the ECJ’s opinion does not discharge participants of their responsibility to comply with the Privacy Shield’s mandates.
  • State requirements – Even if you are certain that your data flows are not transnational in nature, states, such as California with its Consumer Privacy Act, have implemented measures giving consumers rights to their personal data, such disclosure, deletion, or the ability to opt out of third-party data sharing. These laws are very similar to EU laws.
  • Penalties – The penalties associated with non-compliance with the GDPR carry a steep penalty of up to 20 million euros ($23.6 million) or 4% of your company’s annual global revenue, whichever is higher.

How to ensure my data transfer and privacy policies are up to date?

Companies that process and control data—virtually every consumer facing business—must have the ability to readily identify a consumer’s personal data, as well as alert consumers of their rights in the data. What is more, a transnational company controlling and processing personal data must: possess the legal right to process the data, notify the data subject of what other entities hold their data, and “forget” personal data under GDPR. Make sure your compliance with data privacy laws is up to date.

 

Understanding Intellectual Property

Intellectual Property (IP) is commonly defined as a group of legal rights that provide protection over things people create or invent. It might sound straightforward, but there is a lot of confusion over what can actually be protected and what can not.

Who needs to be concerned with IP Protections?

We’ve all heard the phrase, “hindsight is 20/20”. That’s especially true when it comes to IP protections. So often companies or individuals do not realize a new creation or innovation should be protected until it is too late. If you are creating or developing within your space, you need to have an IP strategy to avoid any unintentional disclosure missteps. And, when you are creating, be careful to:

  • Make records. They should be accurate, dated and corroborated.
  • Research the competitive landscape early and identify both opportunities for protection and risks of infringement.
  • Use a non-disclosure agreement or contract before collaborating with another business.
What are some of the biggest IP challenges business owners and employers need to overcome?

The goal for your IP strategy needs to be: Identify, Protect, Monetize.  The question business owners need to answer is how they can most effectively achieve this. The first step is understanding the applicable IP types and the protection gained.

Intellectual Property Type The Value
 

Trade Secret

No registration fees or costs. Goes into effect upon creation and can last forever.
 

Non-Disclosure Agreement/Contract

Very affordable and flexible. But, it only binds the contracting parties.
 

Copyright

 

Free and automatic upon creation.
 

Trademark/Service

Commercial differentiation and price enhancement. Low cost and can last forever, but must police others’ misuse.
 How can an IP strategy affect your bottom line?

It’s important to understand there is no “one-size fits all” approach to IP. The correct IP strategy must be tailored to your unique business. While some companies may be overspending on a scattered approach to protecting IP, other companies may not be investing enough and potential losing out on what could have been an important revenue stream.

The best way to right-size your strategy is to sit down with an experienced IP attorney. Protecting your intellectual property estate can be a daunting task. You’ll need someone with expertise to help guide you through the process and identify opportunities and risks you may have overlooked.

To learn more about how Epiphany Law can help with your company’s IP needs, check out our upcoming webinar. You can register here.

Do you have questions about IP? Contact us here

 

Epiphany Law Manufacturing Law

Can You Lose Your Corporate Protection?

What Every Business Owner needs to Know

Ask any business owner why they incorporated their business and one of the reasons they’ll give is “to protect myself from business liabilities.” But incorporating doesn’t mean you can never be held personally liable. Although it’s rare, courts sometimes ignore the legal protection of a corporation to hold an owner personally liable (a process called “piercing the corporate veil”).

The good news is there are steps you can take to avoid having a court pierce the corporate veil. Piercing happens when the court decides that you, as a business owner, haven’t really treated the corporation as a separate entity. In Wisconsin, the same theory applies to LLCs and their members as well. Essentially, the courts are saying that if you want the protection of incorporating, you have to follow corporation rules.

To avoid piercing:

  • Always follow corporate formalities, like holding annual meetings, keeping minutes and filing with the state on time
  • Never mix corporate assets with your personal ones (or those of another corporation or LLC)
  • When setting up your business, make sure it’s adequately funded. Courts are more willing to pierce an “undercapitalized” business
  • Always identify your business as a corporation or LLC so customers and creditors are on notice that your business has limited liability. Also identify your title so they know you’re acting on the business’ behalf
  • Never use your business to engage in illegal, fraudulent or reckless activities

Having a court pierce your business’s veil can be devastating for you as an owner. But by following the rules, you won’t give the courts a reason to pierce. And, always make sure to get the advice of a trusted business attorney if you are unsure about any of the guidelines. That way you and your business can take advantage of the protections offered by corporations and LLCs.

 

Dispute resolution: litigation v. mediation

Litigation vs. Mediation

In business, it’s common for disputes to arise. Developing cost effective strategies for dispute resolution is critical for achieving a healthy bottom line. Because employers and business owners generally seek to avoid litigation (it is time consuming, expensive and emotionally draining), mediation has become more common.  The below summary compares the differences between mediation and litigation and provides insights as to why the popularity of mediation is on the rise.

Employers and Business Owners understand

Litigation – Refers to a formal process that uses either state or federal court to resolve the dispute. To determine the court, you must examine the claim(s) asserted, the amount at issue and where the parties reside. Though you filed your claim with the court, the judge may require the parties attempt to resolve the dispute through mediation.

Mediation – Refers to an informal and confidential process that uses a neutral third-party, the mediator, to help the parties discuss their differences and consider potential solutions to those differences. If the parties cannot reach an agreement “that both parties can live with,” you still have the right to file a claim with the appropriate court to have a judge or jury determine the outcome of your case.

Where is the process held?

Litigation – Hearings are held telephonically or in the court room.

Mediation – You and the other party determine if the mediation is held at your counsel’s office, opposing counsel’s office, the courthouse, the mediator’s office, or even virtually. Depending upon the mediator’s and/or the parties’ preferences, the parties may be placed in the same room or in separate rooms. If in separate rooms, the mediator will walk between the rooms and present each party’s positions, thoughts and arguments to the other party.

Are the conversations confidential?

Litigation – Correspondence is not confidential and can be used as evidence at a hearing unless the correspondence is related to negotiations between both parties’ counsel to resolve the dispute.

Mediation – Correspondence and evidence presented during a mediation session is confidential and cannot be used by the other party as evidence at a hearing.  The mediator cannot be called to testify and will maintain the confidentiality of everything learned through the mediation.

What is the length of the process?

Litigation – The litigation process typically takes 2-3 years to reach a court judgment. The case may extend beyond 3 years if multiple motions are filed and depending on how complicated the claims are.

Mediation – The mediation process typically takes less than a year, and can sometimes be resolved within weeks. It often depends on the mediator chosen and schedules of all involved. Sometimes, you may attend multiple mediation sessions if both parties are continuing to progress towards a resolution.

Who determines the outcome?

Litigation – Judge or Jury. Besides presenting your case, the outcome is completely out of your hands and in the hands of the judge or jury.

Mediation – You. The mediator does not tell you who is right or wrong. The mediator does not render a decision. The Mediator is there to guide the conversation between you and the other party. Ultimately, you are the one presenting, crafting and responding to potential solutions. You are the one making the decision to accept or decline a solution. The outcome of the mediation is in your hands.

What is the potential outcome?

Litigation – The judge or jury determines a winner and a loser. The judge or jury determines the damages owed to the winner based on claims presented, case law and statutes.

Mediation – Both parties are winners. The parties, of their own accord, mutually decide to end the dispute and accept an outcome that both can live with at the end of the day.

What will the process cost?

Litigation – Below are conservative estimates of costs expected to reach a court judgment in Wisconsin courts. The costs will vary depending on the complexity of your claims and/or the dispute itself. For instance, if your case requires expert witnesses, you will pay more than the estimated costs. Also, the opposing party and/or counsel may cause your counsel to have to submit motions and briefs, which will increase your costs above the estimated costs. Remember, though, that you and the opposing party may settle the dispute prior to receiving a court judgment.

Court Filed in Represented by Counsel Costs
Small Claims Yes Filing Fees plus $5,000
Small Claims No Filing Fees
Large Claims Yes Filing Fees plus $25,000 – $50,000
Large Claims No Filing Fees
Federal Claims Yes Filing Fees plus $30,000 – $60,000

**Wisconsin and Federal Courts require companies be represented by counsel in Large Claims.

Mediation – Mediators usually charge between $250 – $350 per hour. If your case requires knowledge of a unique field or industry, the mediator may charge more than $350 per hour.

What about receiving my legal fees?

Litigation – Whether you receive legal fees depends on statutes, contract language and the discretion of the judge. If statutory or contract language allows the winning party to receive legal fees, the judge will determine the reasonable legal fees that the losing party will pay. The table below shows what you will receive if the judge awards legal fees.

Court Filed in Legal Fees
Small Claims $150 if judgment in favor; $300 if represented at trial and judgment in favor
Large Claims Reasonable fees – depends on contract and/or statutory language
Federal Claims Reasonable fees – depends on contract and/or statutory language

Mediation – Whether you receive legal fees depends on the other party’s willingness to agree to pay your legal fees. Most likely, the other party will not explicitly agree to pay your legal fees.

How do I locate a mediator?

The state bar association has a list of mediators who can be contacted for an appointment. However, it is advisable to work with your attorney first to determine if mediation is right for your case.  Your attorney will spend time investigating and selecting the right mediator for your case.

Would you like to learn more about mediation? Contact us here. Epiphany Law Partner Heather Macklin is an accredited mediator with over 20 years of litigation and dispute resolution experience.

PPP loans; What Business Owners Need to Know

New PPP Updates: What Business Owners and Employers Need to Know

On June 5, 2020, the PPP Flexibility Act was signed into law. The Flexibility Act expanded on certain provisions of the original CARES Act regarding the Paycheck Protection Program (“PPP”). First, the term of PPP loan has been extended. Originally the loan term for the PPP was for one year and now it has been extended to 5 years. The extended repayment period applies only to PPP loans made after June 5, 2020, but lenders and borrowers can renegotiate the maturity of any previously existing PPP loans.

Secondly, the PPP was meant to cover 8 weeks of payroll and the funds needed to be used within 8 weeks after the date of the origination loan.  The time to use the loan proceeds has now been extended to 24 weeks from the date of the loan or until December 31, 2020, whichever occurs first. If a business received PPP funds as of June 5, 2020, they can now choose to extend the eight-week period to 24 weeks, or they can keep the original eight-week period. New PPP borrowers will automatically have a 24-week period, but not beyond December 31, 2020.

Additionally, a business now may not receive a reduction in forgiveness amount for having a reduced in the number of employees if the business in good faith can document an inability to rehire individuals who were employees on 2/15/2020 and an inability to hire similarly qualified employees for unfilled positions on or before December 31, 2020.

OR

Can document an inability to return to the same level of business activity as such business was operating at before 2/15/2020 due to compliance with requirement established/guidance issued by CDC OSHA or Health and Human Services during period of March 1, 2020 and ending on 12/31/2020 related to maintenance of standards for sanitation, social distancing or other safety requirement.

Also, loan recipients now only have to use 60% of the loan for payroll costs and can use 40% for other approved expenses. Loan recipients will also now have their loans deferred for 10 months versus the original 6-month loan deferment.

Lastly, under the original CARES Act,  a business was allowed to delay payment of employer payroll taxes through December 31, 2020 and the payments payable over the next two years.  The caveat to this was that if a business took the PPP loan, they were ineligible for this benefit. The new law now allows for any PPP borrower to delay payment of its payroll taxes like other businesses.

Then it comes to the different COVID-19 Federal Stimulus Packages, there’s a lot for employers and business owners to know. It’s important to understand all your options and develop a strategy to maximize the benefits. Epiphany Law attorneys are able to partner with you and create a plan that will help your business achieve your desired results. You can call us at 920-996-1000 or contact us here. 

Does Your Company Have a Return to Work Strategy?

Article co-written and researched by attorneys Tracy Melvin and Alexis Merbach.

Many businesses are still figuring out how to manage HR issues in a pandemic. They are following the changes in every order and stimulus/relief package passed, and effectively rolling with the punches. Among the confusion and uncertainty, they have found ways to persevere. However, as states and cities now start to reopen—in turn allowing businesses to do the same—there is one question that remains…is the business prepared to get back to work?

There are several policies to consider as a business reopens. Some policies may not be new to the organization and likely are already be in place. Regardless, now is a great time to dust them off. Having correct policy documentation in place is crucial to ensuring the organization is proactively approaching and appropriately responding to the impact of COVID-19.

Businesses should draft or update the following policies as they work to reopen their doors:
  • Telework – Have a clear policy that outlines expectations for remote workers.
  • Anti-harassment & discrimination – There have already been many stories of employees being treated differently because they have or suspect they may have contracted COVID-19. Ensuring anti-harassment and discrimination policies are in place can set expectations and help minimize any potential risk.
  • Reasonable accommodations – Have a policy in place detailing how you will engage in an interactive reasonable accommodation process.
  • Overtime – To combat any wage & hour issues, employers may want to consider a policy requiring overtime to be pre-approved.
  • “Off the Clock” Work – Considering some employees may still be furloughed, laid off, or on reduced-hour schedules, implementing an “off the clock” policy makes it clear that employees are prohibited from checking e-mail, making phone calls, etc. for free. Employees must be compensated for all time worked.
  • Safety – Document workplace safety measures, including policies for proper cleaning, protective equipment, and social distancing measures, that have been put in place to prevent spread of the virus.
  • Health & wellness – Draft policies related to any health questionnaire or temperature check process, including that any health information will be properly protected.
  • Leave – Consider implementing a temporary leave request policy related to the two paid leaves under Families First Coronavirus Response Act.

Drafting or updated workplace policies is a great first step; however, businesses need to ensure effective implementation of these new or updated policies.

There are a few ways to do so effectively:
  • Train supervisors and managers on current, updated, and new policies. This will ensure consistency across the management team and present a united front to employees.
  • Consider cross-training your workforce to accommodate employee absences.
  • Any new or updated policies should be communicated to employees to ensure compliance throughout the organization. Distribute current and updated policies, have employees sign an acknowledgement that they have reviewed, understand, and will adhere to the policies, and continue communication about policies regularly.

To learn more, make sure to watch the webinar below. If you have questions or would like assistance developing a strategy to reopen,  contact us here. 

Strategies for Maximizing the Value of Your Business

How will COVID-19 impact the M&A Market?

Whether you’re thinking about selling your business now or in the future, it’s critical to understand how a prospective acquirer might value your company, and how you can influence that valuation. Even if you’re not thinking of selling today, most business owners will receive one or more unsolicited offers at some point…and you should be prepared. Rob Macklin, Partner at Epiphany Law, and Corey Vanderpoel, Managing Director and Owner at Taureau Group, will discuss strategies you can use in order to maximize the value of your business from both legal and investment banking perspectives, and importantly, will discuss the impacts of COVID-19 on the M&A environment.

• Operational, financial and legal preparation for a business
• The transaction process
• Due diligence and legal imperatives
• Shareholder tax and estate preparation
• Assembling a team of advisors

You can watch the complete webinar here.

Attorney Mike Bendel

Epiphany Law is Proud to Welcome Michael Bendel

Epiphany Law, LLC, is pleased to announce that Attorney Michael Bendel has joined the firm. Mike is an experienced intellectual property attorney, bringing over 25 years of experience advising clients of all sizes on intellectual property matters including trademarks and service marks, copyrights, patents and trade secrets. Serving businesses and entrepreneurs, Mike is a registered patent attorney with the U.S. Patent and Trademark Office since 1996 and has secured hundreds of patents, trademarks and copyright registrations.

Mike’s passion for helping businesses and entrepreneurs aligns directly with Epiphany Law’s mission to “positively impact lives through education, empowerment and an innovative approach to solving problems.” Epiphany Law’s managing partner, Kevin Eismann said, “A strategic IP plan can help drive business success. Our clients can benefit from having all their business needs under one roof.”

Mike earned his J.D. from The John Marshall Law School, in Chicago, IL and his undergraduate from St. Norbert College, De Pere, WI.

 

Epiphany Law, LLC represents Security Door & Hardware Co. and Security Builder’s Supply Co. on their sale to CIH

Epiphany Law LLC is pleased to announce the successful sale of its client, Security Door & Hardware Co. and Security Builders Supply Co. to Central Indiana Hardware, Inc. (CIH).

Security Door & Hardware (SDH) and Security Builders Supply (SBS) provide full Division 8 commercial door and hardware products through four IL locations. The companies will continue to operate under the Security Door & Hardware and Security Builders Supply names as divisions of CIH.

Russ Benson, a member of the founding family said, “We are proud of our accomplishments and feel that CIH will only expand on the legacy our family began.”  Tim Johnson, VP and General Manager of SBS added, “Being part of the Security family has been a fulfilling and educational part of my career and I am proud of what our team has accomplished. I now look forward to a new family team at CIH to grow and expand services to our longtime customers.”

“I have been a part of a great team of individuals and am very proud of what we have been able to accomplish together. We welcome the opportunity to provide additional offerings to our clients over time and are confident that we will improve on the excellent service they have come to expect. Becoming a part of CIH will allow us to better serve our customers in all aspects of the business,” said Greg Rolnicki, VP and General Manager of SDH.

“We are excited to welcome Security Door & Hardware and Security Builders Supply to the CIH family,” said Ron Couch, President & CEO of CIH. “As a company focused on delivering exceptional customer service through innovative programs, we are excited to support the SDH & SBS teams with resources to expand opportunities and accelerate growth in their market.”

“We were thrilled to be able to help the companies transition to new ownership while maintaining their core values,” said Rob Macklin, a Partner at Epiphany Law.  He added, “We think that Epiphany has one of the best track records – and best legal teams – in the country for helping small to mid-sized family businesses maximize their value in a sale or recapitalization, while maintaining the culture that they’ve worked so hard to achieve.”

Epiphany Law, LLC, served as legal counsel to Security Door & Hardware and Security Builders Supply. WCF Advisors, LLC, acted as exclusive financial advisor in connection with the sale.

 

Understanding Recent Guidance from the EEOC

As you know, public health guidelines designed to help communities and employers navigate the COVID-19 pandemic have been changing almost daily. New guidance issued from the Equal Employment Opportunity Commission (EEOC) addresses some of the issues that employers are facing. Here are answers from the EEOC on a few common questions employers may have:

If an employee calls in sick, how much information may an employer ask request from that employee?

Employers may ask employees is they are experiencing COVID-19 symptoms, such as fever, chills, cough, shortness of breath, or sore throat. Employers must remember that all information about the employee illness needs to be kept confidential.

May an employee take body temperatures of employees during this pandemic?

Generally, this would be considered a medical examination; however, because health authorities want to control the spread of COVID-19, employers may measure employees’ body temperature. Employers should ensure they are consistent in this practice across the workforce.

May an employer to require employees to stay home if they have COVID-19 symptoms?

Yes. The CDC states that employees who with symptoms of COVID-19 should leave the workplace.

Once an employee returns to work, may an employer require a doctor’s note certifying fitness for duty?

Yes. Employers may need to get creative in what they accept for documentation, as doctors and other health care professionals may be too busy during a pandemic outbreak to provide fitness-for-duty documentation.

As always, we will continue to provide you with factual updates on a regular basis throughout this pandemic. We will be hosting another webinar on Monday, March 23, 2020.

 

About the Author:

Tracy Melvin serves as a human resources business consultant with Epiphany Law. Tracy is an experienced professional having spent over ten years helping a variety of companies implement and manage complex HR strategies. In her current role, Tracy provides HR consultation to business executives and owners that drive results. Tracy drafts employee handbooks, policies, procedures, employment contracts, executive compensation plans and agreements to protect the company’s interests. She also assists business leaders by conducting HR audits to ensure compliance with local, state and federal employment and labor laws.

Tracy Melvin