Federal Judge Dabney Friedrich Vacates CDC Nationwide Eviction Moratorium

Brian Weinstock

By Brian Weinstock

eviction moratoriumOn May 5, 2021, Federal District Court Judge Dabney Friedrich in Alabama Association of Realtors, et al.  v. United States Department of Health and Human Services, et al., determined the Federal Public Health Service Act, which governs the federal government’s response to infectious diseases such as COVID-19, does not provide legal authority for the Centers for Disease Control (CDC) to impose a nationwide eviction moratorium. Originally set to lapse on December 31, 2020, the eviction moratorium is set to lapse on June 30, 2021. Judge Friedrich reasoned the Public Health Service Act unambiguously forecloses the nationwide eviction moratorium and issued an Order advising that the current CDC nationwide eviction moratorium issued is vacated.

The nationwide eviction moratorium was initially put in place in September 2020 under the Trump Administration and has been extended three times. Judge Friedrich indicated there was “no doubt” Congress intended to empower the CDC to combat COVID-19 through different measures, such as quarantines, but not a moratorium on landlord evictions.  Other federal courts have been divided over the CDC landlord eviction moratorium, with some also finding the CDC exceeded its authority, though none formally blocked its enforcement. The March 25, 2021 blog post “CDC Eviction Moratorium Declared Unconstitutional by Texas Court” discussed other recent rulings in Ohio and Texas: Continue reading »

CDC Eviction Moratorium Declared Unconstitutional by Texas Court

Brian Weinstock

By Brian Weinstock

eviction moratoriumOn February 25, 2021 the U.S. District Court for the Eastern District of Texas granted plaintiffs’ (landlords’ and property managers’) Motion for Summary Judgment, ruling that decisions to enact eviction moratoriums rest with the states. In Lauren Terkel, et al. v. Centers for Disease Control and Prevention, et al., the court ruled that the federal government’s Article I power under the U.S. Constitution to regulate interstate commerce and enact necessary and proper laws (Necessary and Proper Clause) “does not include the power” to order all evictions be stopped during the Covid-19 pandemic.

The Centers for Disease Control and Prevention (CDC) issued an eviction moratorium order in September 2020 which was set to expire on December 31, 2020. Initially extended to January 31, 2021, the Order was then extended to March 31, 2021.  The CDC Order “generally makes it a crime for a landlord or property owner to evict a ‘covered person’ from a residence” provided certain criteria are met. Under the CDC Order, the tenant(s) must submit a Declaration, signed by the tenant(s) and served on the landlord, and requires the tenant(s) to make their best efforts to obtain governmental assistance before they can obtain status as a covered person to avoid an eviction. The landlord is not required to notify the tenant that they can execute a CDC Declaration to obtain status as a covered person.  The CDC’s Order also grants the Department of Justice (DOJ) authority to initiate criminal proceedings and allows the imposition of fines up to $500,000 against landlords who violate the Order after receiving a CDC Declaration from all tenants on the premises. Continue reading »

Emergency Rental Assistance Program (ERAP) and Extension of the CDC Halt to Temporary Evictions to Prevent Further COVID-19 Spread

Brian Weinstock

By Brian Weinstock

eviction moratoriumUpdated 4/1/2021

On September 4, 2020, the Centers for Disease Control and Prevention (CDC), issued an Order under Section 361 of the Public Health Service Act (PHSA) to temporarily halt residential evictions to prevent the further spread of COVID-19. The CDC Order was deemed to terminate by December 31, 2021; however, the December 27, 2020 Coronavirus Relief & Omnibus Agreement extended the moratorium until January 31, 2021. After an extension in January until March 31, the eviction moratorium is now extended until June 30, 2021. However, In Terkel v. CDC, a Texas District Court determined the CDC Order was unconstitutional. The Department of Justice field an appeal in Terkel. Since the DOJ appealed the Texas case, it would be wise for landlords to continue to operate as if the CDC Order is constitutional and in effect, especially outside of Texas. However, this does not prevent landlords from requesting an evidentiary hearing and contesting whether the tenant(s) met all the criteria in the CDC Declaration to obtain status as a covered person. If not, or if the tenant(s) did not serve a CDC Declaration on the landlord, then it appears the landlord can proceed with the eviction.

To invoke protection from the CDC Order, all tenants on the lease, rental agreement, or housing contract must execute the CDC Declaration and give notice to their landlord. The landlord is not required to notify the tenant(s) about the CDC Declaration.

Failure to execute the CDC Declaration by all tenants prohibits any potentially covered person from being protected from an eviction through the CDC Order if  solely for failure to pay rent.  A landlord can still evict a tenant for any other breach of the residential lease while the CDC order is in effect. Continue reading »

CDC Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19

Brian Weinstock

By Brian Weinstock

eviction moratoriumOn March 27, 2020, the Coronavirus Aid, Relief, and Economic Security (CARES) Act was signed into law.  This law provided different types of relief to Americans and business entities as a result of financial damage caused COVID-19.  The CARES Act prohibits the filing of eviction lawsuits by a landlord against a tenant to recover possession for nonpayment of rent if the dwelling is a “covered property” as that term is defined in the CARES Act.  Covered properties include a covered housing program (as defined in section 41411(a) of the Violence Against Women Act of 1994), the rural housing voucher program under section 542 of the Housing Act of 1949, federally backed mortgage loans and federally backed multifamily mortgage loans.  After the CARES Act was signed into law, this meant landlords who owned residential properties that were not covered by the two Acts mentioned and were not backed by federal mortgages could proceed with filing eviction lawsuits to evict tenants solely for not paying rent, which typically requires the landlord to state under oath through an affidavit or verified petition that the property they own is not a covered property under the CARES Act.

On September 4, 2020, the Centers for Disease Control and Prevention (CDC), which is part of the Department of Health and Human Services (HHS), announced the issuance of a CDC Order under Section 361 of the Public Health Service Act (PHSA) to temporarily halt residential evictions to prevent the further spread of COVID-19.  Continue reading »

NYSE and Deutsche Boerse (DB) Merge to Survive

Brian Weinstock

By Brian Weinstock

Is America’s dominance in capitalism clearly over?

The NYSE merger is one of survival both for the NYSE and for the German securities exchange Deutsche Boerse.

The NYSE is inefficient, i.e. the pit, traders on the floor. Lower fees and better efficiencies created the mess at the NYSE.  The NYSE has too many outdated traditions which created numerous types of inefficiencies, forcing the NYSE into a downward position. Even the NASDAQ was doing better than the NYSE regarding efficiencies via electronic trading.

We live in a global economy. There are trading exchanges all over the world, i.e. China, Tokyo, Brazil , Russia, India, Australia, London, etc. The stock exchanges in China and Brazil are some of the largest in the world. Everybody in the world can access securities exchanges via the Internet.

The dollar is weak right now. Europe has a debt crisis and the Euro is not so stable.

Not long ago, one of Europe’s leading independent forecasters for the Treasury asserted that the Euro could collapse as a result of Europe’s debt crisis. The European Central Bank’s Governing Council Member asserted that it is not up to the bank to save countries where governments run the risk of being insolvent.

Right now, Ireland, Greece, Portugal, Italy, and Spain have a lot of debt problems and plenty of entities are buying more insurance at higher prices to cover potential losses in those countries.

Germany had good growth in 2010 but their economic model is centered around exports, i.e. cars and machines. Asia (China) drove Germany’s growth in 2010. Can Germany sustain their economic model since other European countries (mainly southern Europe) have stagnant economies re: exports and imports? The European debt crisis has pushed the Euro down which has made German exports more competitive.

Right now, US exports are even better than German exports because the US dollar is weak, too.

Since Germany appears to be in the best economic position in Europe more people are putting capital in Germany when investing in Europe. German exporters could take a huge hit if Europe’s debt crisis runs into other European countries.

Who knows what will happen because regulators have to look this over. Also, there are may political issues with this deal starting with a fight over what to name the exchange. Politicians could crush the regulatory process simply because they do not like the proposed name. I suspect it will go through because both exchanges need this for survival.

I think the NYSE deal is a play on a world asset which is undervalued as a result of a weak US dollar.

Ex: InBev could not purchase AB if the US dollar was strong. InBev took advantage of a weak US dollar and is now dealing with a lot of debt and debt service. The strength of the US dollar runs in cycles just like the markets. Will the US dollar stay at its current value forever or remain at lower values when priced against other global currencies? I suspect not.

The World Bank has predicted a global growth of 3.3% for 2011. Europe’s debt crisis is a huge factor which could derail any global recovery.

The European Central Bank has asserted that inflation may be around for months in Europe which would probably require a European interest rate hike which would make borrowing from global banks tougher than it already is.

However, major companies are lean and mean now and sitting on trillions of dollars of cash. In addition to inflation and a debt crisis, the 17 member European nation is still facing 10% unemployment which was after a recent drop. Also, housing prices continue to drop in Europe although it appears that it has bottomed out.

Is America’s dominance in capitalism clearly over? I would say no since nothing is clear right now with global economies, global financial markets and global debts and debt service.

ROBS Transactions as a Financial Investment Tool: Legal Traps for the Unwary

Brian Weinstock

By Brian Weinstock

Over the last few years, ROBS transactions have dramatically increased which means that the funds being used to capitalize these transactions has significantly increased too. I wrote about ROBS transactions last June in a post called “ROBS transactions: the Department of Labor and IRS Regulation.”

Recently, Mr. Alan Lavine interviewed me for an article in Financial Advisor Magazine about ROBS transactions with regard how they are being used as financial investment tools and whether investors should participate in this type of transaction. The article, “Rolling Over, Starting Up,” appears in the in the December 2010 issue. The article’s subtitle is: Clients can tap into retirement savings to start new businesses, but there are legal traps for the unwary.

It was an honor to be quoted by Mr. Lavine who is an accomplished author and syndicated columnist. Mr. Lavine and his wife, Gail Liberman, wrote Rags to Riches which was featured on Oprah and hit two best seller lists.

Workers Can Now Sue Each Other for Negligent Acts Committed Against Each Other

Brian Weinstock

By Brian Weinstock

There are some unfortunate unintended consequences of the August 28, 2005 Missouri Workers Compensation Reform.

I wrote Workers Can Now Sue Each Other for Negligent Acts (just published by Associated Industries of Missouri) because I believe the case (mentioned within) sets a terrible precedent from a public policy standpoint.

Do we really want employees suing each over simple negligence when there is a remedy for the injured worker via workers compensation?

Employees probably have no insurance to protect themselves over these types of issues. This could have a devastating effect on small and medium size businesses so I believe it needs to be overruled by the Missouri Supreme Court or the legislature and the Governor need to fix this issue quickly.

NFL: American Needle and the Collective Bargaining Agreement

Brian Weinstock

By Brian Weinstock

Recently, the United States Supreme Court ruled 9 – 0 in favor of American Needle and against the National Football League (NFL). America Needle sued the NFL alleging anti-trust violations of Section 1 of the Sherman Act wherein “every contract, combination in the form of a trust or otherwise, or, conspiracy, in restraint of trade” is made illegal. The lawsuit raised the questions of whether the NFL is capable of engaging in a “contract, combination in the form of a trust or otherwise, or, conspiracy, in restraint of trade” as defined by Section 1 of the Sherman Act or whether the alleged activity performed by the NFL “must be viewed as that of a single enterprise for purposes of Section 1” of the Sherman Act.

If all thirty-two NFL teams could act as one entity, then provisions with respect to collusion could be severely eroded or exterminated altogether. This could allow the NFL to establish salary caps for players which would normally be illegal. This is significant given the pending labor dispute between NFL owners and the NFL players association (NFLPA). The United States Supreme Court held that each of the NFL teams is “substantial, independently owned, and independently operated.” Moreover, the court noted that the NFL teams compete with one another, not only on the playing field, but to attract fans, for gate receipts, for contracts with managerial and playing personnel and when it comes to licensing decisions even if it is through a joint venture known as the NFLP. With regard to the American Needle case, the court found that the NFL teams compete in marketing for intellectual property in terms of pursuing interests of each “corporation itself.” The court held that decisions by the NFL teams to license their separately owned trademarks collectively and to only one vendor are decisions that “deprive the marketplace of independent centers of decision making and therefore of actual or potential competition.”

NFL owners for the most part are smart people. Do you really believe that NFL owners expected to prevail with regard to American Needle’s allegations of anti-trust violations? Do you really think NFL owners believed that just because they organized the NFLP they would be insulated from Section 1 of the Sherman Act? Do you really believe that NFL owners thought the American Needle case was their golden ticket to increase their power over the NFLPA? NFL owners and the league knew there was a high probability that their position in the American Needle case would not prevail.

As a result of the American Needle case, the NFL is not going to be able to establish salary caps for players unless they have the approval of the NFLPA. One major issue with respect to the upcoming labor negotiations is a rookie salary cap. Right now, rookie salaries are not capped. NFL teams who pick at the top of the first round of the NFL draft do not necessarily want these picks even though they are in prime position to obtain the finest talent. These teams do not want these picks because of the amount of money they must guarantee (e.g. $40 million) to a player who has never played a single down in the NFL. The NFL draft is as much art as it is science and with this comes high risk in return for substantial gains or loses, e.g. JaMarcus Russell, Ryan Leaf, etc. NFL owners do not want to guarantee so much money to an unproven player. Can anybody really blame them? Would you put up $40 million for an unproven player? Is it reasonable to expect an owner to make that type of investment in a player who has not enhanced the value of the team?

Many so called experts claim that the American Needle case allowed the NFLPA to gain leverage at the bargaining table with respect to a new collective bargaining agreement (CBA) so that:

  1. A lockout is less likely; and
  2. NFL owners will put more effort into executing a new CBA to avoid a lockout.

Did the NFLPA really gain any leverage at the bargaining table? NFL owners are for the most part billionaires and have access to substantial sums of money to cover any debt service associated with facilities or costs with respect to operating their franchise. Moreover, the NFL has a television contract with DirecTV which is to pay $1 billion per year from 2011 – 2014. Even if there are no games in 2011, each NFL team will earn about $31 million per team during a lockout just with respect to the DirecTV deal. NFL owners are not hurting for money and will still eat three meals a day, live in their same homes and drive their same cars.

On the flip side, the average career for a NFL player is 3.5 years, the players’ contracts are not guaranteed and the vast majority of NFL players do not make millions of dollars in a year let alone over a career. Despite not earning large sums of money over their NFL career, most NFL players live well beyond their means in terms of homes, cars, clothes, entertainment, etc. NFL players need to remember who cuts their paychecks, why the have the privilege of playing in the NFL and who has incurred the debt to run a NFL franchise. The players have the privilege of being in the NFL because of the owners. Without the NFL and its owners, the vast majority of NFL players would be working a forty hour a week job earning a marginal income. The NFLPA and its members always want more money and benefits but they never want to take on any debt or risk associated with running a professional sports franchise. May be the NFL players should personally guarantee some of the corporate debt associated with the thirty-two NFL teams since they want to share in the profits.

The vast majority of NFL players cannot earn the same or similar salary in any other industry that comes close to what they can make in 3.5 years in the NFL. Since the average NFL career is 3.5 years, any time missed as a result of a lockout or strike would take time away from a playing career since any NFL player can always be replaced by a younger player. When NFL players were on strike for fifty-seven days in 1982, many of them wanted the strike to end so that they could get back to work and make their usual salary as opposed to earning strike pay. Although, one difference from 1982 is that the NFLPA has built up a large war chest for a long lockout and owns its own building which it can borrow against if in a pinch. However, NFL players know that they can be replaced as they were in 1987 with so called scab players. Even though the term “scab” paints a picture of lesser quality, fans have to realize that the NFL draft used to have many more rounds than the current seven rounds, i.e. Johnny Unitas taken in the ninth round, and every year players who are not drafted make NFL rosters, i.e. Kurt Warner, London Fletcher, etc. Thus, there are plenty of talented former college football players who are waiting to play in the NFL to show a team what they can do. While there may be a drop off in terms of the elite NFL talent, there surely is not much of a difference between high caliber scab players and the average NFL player.

The NFL has the best professional sports product in the United States with an $8 billion business which continues to grow. The NFL has never been more popular inside and outside of America. NFL owners and the NFLPA are well aware of the numbers and are not eager to ruin their product. NFL owners and league officials are well aware of what happened during the 1982 fifty-seven day long players strike and the 1987 strike which introduced fans to scab players for three weeks. Based on all the totality of the circumstances:

  1. NFL owners are not eager to ruin their product with or without a victory in the American Needle case;
  2. A lockout is not more or less likely given a NFL loss in the American Needle case;
  3. NFL owners have the same motivation to avoid a lockout today as they did before the American Needle case; and
  4. The leverage is still with the NFL owners when it comes to negotiating a new CBA.

ROBS transactions: the Department of Labor and IRS Regulation

Brian Weinstock

By Brian Weinstock

Recently, the Department of Labor advised that they are in the process of developing information to provide direction for Rollovers as Business Start-ups known by the IRS as ROBS transactions.

The IRS issued a memorandum on October 1, 2008 warning about potential pitfalls for ROBS transactions particularly related to prohibited transactions. Moreover, the Department of Labor and the IRS have indicated that a large percentage of ROBS transactions do not comply with federal rules and regulations with regard to tax-deferred retirement plans such as qualified 401k plans and IRAs.

According to Louis Campagna, Chief of the Fiduciary Interpretations Division for the Department of Labor’s Employee Benefits Security Administration, the direction being produced by his department shall address the Department of Labor’s apprehension with regard to ROBS transactions initiated with rollovers from employer sponsored qualified plans and individual retirement accounts, such as 401k plans and IRAs, in order to allow a professional to assess whether the ROBS transaction could be a prohibited transaction.

The Department of Labor is concerned with the employer’s intent when the ROBS transaction is initiated.

Specifically, the Department of Labor needs to determine whether the ROBS transaction was initiated to implement a lawful way for employees to save money for retirement or is the ROBS transaction being used to shelter income for taxpayers who want to start a business or capitalize an existing business. The latter would allow for the taxpayer to withdraw funds from the C-corporation with the 401k plan for reasons unrelated to the business. If so, the taxpayer could withdraw funds, which where designated as tax-deferred, before they are allowed to be withdrawn tax free.

The IRS has their own concerns with ROBS transactions such as the valuation of the transaction and their compliance with other rules for qualified retirement plans which invest in employer stock, therefore the IRS may publish their own memorandum with respect to the issues they have concerning ROBS transactions.

Besides the complex rules and regulations governing prohibited transactions, another major concern for the IRS is the ability to “unwind” ROBS transactions which have violated IRS rules and regulations for qualified retirement plans. If a 401k plan participates in a prohibited transaction, the entire 401k plan loses its tax deferred status. Therefore, the entire 401k becomes taxable. Another major issue is deterioration of the initial ROBS valuation. Many small to medium size business holders remove cash from the entity for reasons unrelated to the business. This type of action can cause a decrease in the initial value of the ROBS transaction and violate prohibited transaction rules and regulations.

Time is of the essence with respect to hiring a professional to review your ROBS transaction in order to determine if there have been any violations of federal rules and regulations, such as prohibited transactions. The IRS has a self-correction program for 401ks which taxpayers can take advantage of before an IRS examination.

Missouri Historic Tax Credit

Brian Weinstock

By Brian Weinstock

Currently, the Missouri legislature is debating on whether to restructure the state’s historic tax credit program given the state’s budget crisis. Governor Nixon apparently believes that the state’s historic tax credit programs are large and have been usurping state funds that could go public schools, colleges and universities. Therefore, his administration believes that these programs need to be reformed to free up cash flow for other state programs. Governor Nixon’s administration has proposed creating new statutes for six separate state historic tax credit programs with discretion on the amount awarded, whether to award any amount at all, whether to award any or all of a particular year’s credits allocation and whether to cap certain tax credits at $314 million a year. No rules or regulations have been set in place for the Missouri Department of Economic Development to even make these types of determinations which will only serve to complicate the process even though the current process has been recognized as a national model.

In 1999, The Wall Street Journal published an article entitled “In St. Louis Developers Bank on Tax Credits” wherein the author called the Missouri Historic Tax Credit program “a national model.” The article explains “the Missouri program provides state income tax credits for 25% of eligible rehabilitation costs of approved historic structures. The credit which has no cap applies to both residential and commercial buildings and can be used in conjunction with the 20% federal historic tax credit. In addition, the state tax credit is transferable: Mercantile Bank (now US Bank) has set up the Missouri Tax Credit Clearinghouse to buy and sell credits.” Rehabilitation construction projects such as Cupples Station, the Chase Park Plaza and projects on Washington Avenue and surrounding areas in downtown St. Louis would not have taken place without these tax credits. Without these tax credits, these properties would most likely continue to be an eye sore for the community and definitely not creating new jobs nor increasing state and local government revenue.

The Missouri Growth Association (MGA) and St. Louis University performed a ten year study with regard to Missouri’s historic tax credit programs. In March 2010, they released their conclusions which revealed that the Missouri historic tax credit program contributed to the creation of over 43,000 Missouri jobs with average salaries of $42,732, $669 million in newsales, use and income tax revenues which directly benefited the state and local governments as well as $2.9 billion in private investment in Missouri. According to the Missouri Department for Economic Development, Missouri Historic Tax Credit projects created 4,900 Missouri jobs in 2007, which according to David Listokin of Rutgers University Center for Urban Policy Research, equals 38 jobs per $1 million invested or more jobs than highway or new construction projects. Moreover, the Missouri Department of Economic Development noted that from 1998 – 2008 over $4 billion of investment had been leveraged throughout Missouri as a result of the Missouri Historic tax Credit Program as well as $858 million being invested in 2008. In addition, the Missouri Department of Economic Development has concluded that over 66 communities in Missouri have taken advantage of these historic tax credit programs.

According to the Downtown Community Improvement District (2009), St. Louis City alone has 5,000 new residents as a direct result of Missouri’s Historic Tax Credit programs which caused the city to have its first population increase in fifty years. All of these new residents as well as visitors are paying new local taxes to the state and St. Louis City.

The discussion of removing or capping Missouri’s Historic Tax Program would have zero effect on the 2010 budget since historic tax credits have already been approved for this year. Any change to the Missouri Historic Tax Credits programs would only affect future state budgets. If the state historic tax programs are changed, developers would then analyze the cost to renovate a historic building with the potential revenue. In addition, changes to the programs or uncertainty in the programs will cause more problems for developers in terms of financing a project. At this time, developers are having a hard time financing projects as a result of new internal lending policies and procedures. Many lenders are requiring anywhere from 40% percent equity to 100% collateralization in order to obtain a loan. If the state has a stable historic tax credits program, a developer can leverage those funds to aid in financing a project.

While Missouri is debating whether to institute significant changes to the Missouri Historic Tax Credits programs which was deemed “a national model”, Kansas removed its historic tax credits cap. Further, Iowa increased their historic tax credits cap and Illinois is organizing a historic tax credit program. If Missouri wants to continue to grow jobs, grow revenue for state and local governments as well as increase private investment; particularly, when the country and the state are hopefully coming out of a significant economic recession, the Governor and state legislators need to think long and hard about altering a extremely successful state historic tax credit program which is not only the envy of many other states but has been recognized on a national level.