Missouri Employers and Abortions as Healthcare: Don’t Ask, Don’t Tell

Authored by Ruth Binger with assistance from Sarah L. Ayers, contributor

The recent U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization triggered a ban on abortion in Missouri and several states. In 2019, Missouri passed the “The Right to Life of the Unborn Child Act,” an anti-abortion bill which included a trigger ban on abortions. In the event Roe v. Wade was ever overturned, the Governor or Attorney General was to issue a statement implementing the ban. Missouri Attorney General Eric Schmitt issued a statement proclaiming the trigger law in effect as of Friday, June 24, 2022, at 9 a.m. following the Dobbs decision.

A variety of new legal questions related to abortion and healthcare have arisen since the decision was announced and states, such as Missouri, have enacted trigger bans. One example of the confusion involves life-saving abortions in cases of a medical emergency. Under a new regulation issued by the Biden administration, a life-saving abortion in cases of a medical emergency is a federally protected procedure. Leaders in several states have challenged the regulation.

Another issue lies with pre-Roe bans in states which outlaw abortion and whose legality today is still questionable even with the reversal of Roe. Many states with pre-Roe bans are in the process of putting updated laws on the books that either re-affirm restricting abortion or protect abortion. Kansas voters recently rejected a proposed state constitutional amendment stating there is no right to abortion within the state. Other questions raised include: How will the laws be enforced? Who can be charged with conspiracy in states under a ban (such as Missouri)? Can a state with an abortion ban exclude a fetus from being considered a person in other areas of the law? Continue reading »

Sexual Harassment Policies for the Trucking Industry: Best Practices

The current over-the-road driver shortage has created increasing pressures for trucking companies of all sizes. As a result, some trucking companies may be reluctant to terminate – or to not hire – drivers who have been accused of sexual harassment. But this reluctance may not be a good idea in light of Title VII.

Title VII of the Civil Rights Act of 1964 prohibits sexual harassment and retaliation against any employee who complains of sexual harassment to an employer. In addition, Title VII complaints can be filed in any judicial district where: the harassment was alleged to have been committed; the employment records relevant to the harassment claim are maintained and administered; the complainant worked; or if the employer cannot be “found” in one of the first three districts, the complaint can be filed in the district of the employer’s principal place of business.

Continue reading »

Securities Law in Crypto: It’s Everywhere! It’s Everywhere!

Suppose you have become a believer in crypto, crypto currencies, blockchain technology and crypto concepts such as non-fungible tokens (“NFTs”). You believe that crypto-based assets (existing now and probably soon to be invented) present opportunities for profitable new businesses. But what do these opportunities look like under the Securities and Exchange Commission (“SEC”) laws?

Opportunity #1: Sell some of your NFTs and manage them for the new owners.

You decide to sell some of your assets to friends and others who are not as knowledgeable in crypto and offer to manage those NFTs for your purchasers.

But your reading of crypto literature has turned up concerning mentions by the SEC that cryptocurrency and crypto-assets are “securities,” like stocks and bonds, and are – or will be – regulated by the securities laws. And some state securities commissions are also making similarly uncertain statements.

Your further research shows that the statutes and the courts define a “security” to be any interest, contract, or transaction involving:

• An investment of money or valuable property,
• In a common enterprise,
• With the expectation that profits will be derived from the efforts of the promoter/seller of the interest or a third party(s).

I.e., the Howey test, named after the Supreme Court case of SEC v. Howey.

The dominant factor in this definition is that of profits expected to be generated by the efforts of persons other than the purchaser/holder of the interest. You realize that your offer to manage the NFTs calls for your efforts to generate profits and may call the Howey definition into play. (We will perhaps discuss the equally uncertain concept of “common enterprise” in a later discussion.)

Opportunity #2: Manage a pool of NFTs. Continue reading »

Clicking Towards Disaster: The Cost of ADA Non-Compliant Websites

Click here for July 2023 Update: Clicking Towards Disaster: The Cost of ADA Non-Compliant Websites

Getting Through Chapter 11 – Part Two: Plan of Reorganization

Part 5.2 of a 5-part series: Options for Small Business Owners in Financial Distress

Your company’s Chapter 11 bankruptcy has been filed and you’re now running your business under the provisions of the United States Bankruptcy Code.

It’s now time to work toward the ultimate goal of a Chapter 11: a Plan of Reorganization, confirmed by the court, allowing your company to restructure its debts, exit Chapter 11, and continue in business. It is important that you explain all of your concerns about all aspects of your business to your attorney and provide complete and accurate information, all before you even file the case. This will help both of you develop good ideas for successfully navigating your reorganization case and getting a plan confirmed. Advise your attorney if a new problem develops so you can consider all the potential solutions available to you.

Your next steps in planning for reorganization will include you and your attorney:

• Participating in two mandatory meetings with a U.S. bankruptcy trustee within the first 30 days after filing and begin filing monthly operating reports.
  1. “Initial debtor interview:” Learn procedural issues such as the ins and outs of filing periodic operating reports such as monthly operating reports and where and how your company can bank.
  2. Section 341 “meeting of creditors:” Be questioned under oath by the U.S. trustee’s office about your need to file Chapter 11, your plan to exit bankruptcy, how you will implement your ideas, etc. This meeting is open to all interested parties.
• Negotiating the terms of your proposed plan with the creditors’ committee if one has been formed by large unsecured creditors.
• Negotiating lease terms. Any lease which commenced prior to the filing can be “rejected.” You can then renegotiate the terms or terminate the lease, in which case the lessor’s claim will be treated as a pre-petition claim.
• Treating an equipment lease as an installment purchase agreement secured by the equipment, possibly converting a portion of the secured debt to unsecured and altering the terms of repaying the secured debt.

Continue reading »

Business Beware: You Can’t Take Deceptive Steps to Manipulate the Collection or Publishing of Negative Reviews on Your Website

Businesses are to avoid potentially deceptive conduct that would confuse consumers under Section 5 of the Federal Trade Commission Act, and the FTC is now focusing very heavily on deceptive customer reviews and endorsements. Deceptive conduct includes any conduct which treats positive and negative reviews unequally, thus misleading consumers of useful information and inflating the product’s star rating.

In one of its first cases, the FTC pursued Fashion Nova, LLC, a fast fashion retailer that attempted to conceal negative reviews. According to the complaint, “Fashion Nova used a third- party online product review management interface to post four- and five-star reviews and hold off on lower star reviews [estimated in the hundreds of thousands] for the company’s approval.” Fashion Nova never approved or posted the lower star reviews. In its settlement with the FTC, Fashion Nova is prohibited from suppressing customer reviews of its products and is required to pay $4.2 million to settle the FTC’s allegations.

What does this mean for businesses that use or consult regarding consumer reviews? Continue reading »

Getting Through Chapter 11 – Part One: After Filing

Part 5.1 of a 5-part series: Options for Small Business Owners in Financial Distress

Your attorney has just filed your company’s Chapter 11 reorganization case and you have no clue what to do next. Seriously, the first thing you should do is nothing. Take a breath and keep running your business.

That’s not to say there’s nothing for you to do during the entire Chapter 11 process – there’s actually quite a lot for which you will be responsible. Any competent bankruptcy attorney already has discussed your statutory and practical responsibilities in a Chapter 11 case with you prior to filing.

Now is the time to implement those decisions made before the case was filed. If you forget a decision you made (or come across an issue you hadn’t discussed), call your attorney. The two of you should be in frequent contact during the case to be sure that you don’t take any actions which don’t make sense in the Chapter 11 context, or which might violate the Bankruptcy Code, Bankruptcy Rules, or Local Rules.

Your primary concern after the case is filed is, of course, money to operate with. That topic should be discussed thoroughly with your attorney prior to filing. Be sure your attorney discusses post-petition financing and use of ‘cash collateral’ with you. Be sure that you have post-petition financing lined up before you file, either from internal operations or from a lender. If your post-petition financing falls through, or you’re not as profitable as you expected to be after filing, you may not be able to afford to operate during the Chapter 11. If so, there is  no way for you to reorganize and your Chapter 11 case may be dismissed outright. Continue reading »

Will College Athletes Be Considered Employees?

Authored by Attorney Ruth Binger and with assistance from Haley E. Gassel, contributor

College athletes generate billions of dollars in revenue for their colleges and universities. As athletes are realizing their value to college sports, they have increasingly engaged in collective action and sued to be considered employees. A recent memorandum by General Counsel of the National Labor Relations Board (NLRB) puts this issue on the forefront, indicating that the NLRB is classifying college athletes at academic institutions as employees under the National Labor Relations Act (NLRA).

In National Collegiate Athletic Association v. Alston, the Supreme Court held that the NCAA’s restrictions on student athletes being compensated fell within antitrust scrutiny. The unanimous court ruled unanimously that the NCAA cannot prevent athletes from receiving education-related benefits, such as scholarships for graduate or vocational school, payments for academic tutoring, or paid post eligibility internships. The Supreme Court has recognized that college athletes are not amateurs, and they contribute to a profit-making enterprise. Additionally, in Johnson v. NCAA, a federal judge in Pennsylvania held that a group of student athletes plausibly alleged that they were employees of their colleges and universities and allowed their action against their colleges and universities under the Fair Labor Standards Act to proceed. Overall, courts are signaling a willingness to consider arguments that student athletes should be classified as employees. Continue reading »

Can Real Estate Property Lost Due to Unpaid Taxes Be Recovered Through Bankruptcy?

Every state has a statute authorizing the counties within it to foreclose on or sell real estate which has delinquent taxes owed on the property. In Missouri, for instance, counties are allowed to conduct sales of such properties once the real estate taxes have been delinquent for three years. The exact procedure may vary from county to county.

The purchaser at a tax sale will likely pay much less than the property is worth. If the previous owner should file a bankruptcy case, can the bankruptcy court set aside the sale as “fraudulent,” in the sense that the property was transferred from the owner for less than the true value of the property?

In 1994, in BFP v. Resolution Trust, 511 U.S. 531, the U.S. Supreme Court ruled that properly conducted mortgage or Deed of Trust foreclosures cannot be fraudulent transfers because, although it is very rare for a foreclosure sale price to be anywhere close to a market price, notice of the sale is published and members of the public can attend the sale and purchase the property if they care to.

However, the fraudulent transfer question is much closer if the transfer is by tax sale. The notice of the sale is narrower than even a mortgage foreclosure, and the chances of the property selling for a fair value is even less.

So, can a sale or foreclosure for delinquent taxes be set aside as constructively fraudulent? This question has given rise to a split among the Circuits. The Sixth Circuit, in the recent case of Lowry v. Southfield Neighborhood Revitalization Initiative (In re Lowry), 20-1712 (6th Cir. Dec. 27, 2021), found that the BFP reasoning did not apply to tax sales. This brought the circuit split even, with three circuits (the Fifth, Ninth and Tenth) finding that BFP does apply to tax sales and three circuits (the Third, Sixth and Seventh), holding that it does not.

The Bottom Line: Continue reading »

Unpaid Leave for Victims of Domestic or Sexual Violence Now Required in Missouri

Authored by Katherine M. Flett with assistance from Haley E. Gassel, contributor

Missouri employers must now provide unpaid leave and accommodations to employees due to domestic or sexual violence under the Victims’ Economic Safety and Security Act (VESSA).

Employers Covered Under VESSA

• Employers with 1-19 employees are not subject to these requirements.
• Employers with 20-49 employees are required to provide one week of unpaid leave per year to employees covered under these statutes.
• Employers with 50 or more employees are likewise required to provide two weeks of unpaid leave per year to employees covered under these statutes.

Employees Eligible for Unpaid Leave or Accommodations under VESSA

VESSA applies to employees of covered employers who are victims of domestic or sexual violence, or whose family or household member is a victim of domestic or sexual violence. A family or household member is a spouse, parent, daughter, son, someone related by blood or by marriage, someone who shares a relationship through a son or daughter, and anyone jointly residing in the same household.

Reasonable Accommodations

Employers and public agencies are required to make reasonable safety accommodations to the known limitations resulting from circumstances relating to being a victim of domestic or sexual violence or a family or household member of domestic or sexual violence. Reasonable accommodations include: Continue reading »