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Main Street Lending Program

18 Nov 2020 00:00:00 -0800

The Main Street Lending Program (“Program”) was established by the Federal Reserve to support lending to small and medium-sized for profit business and nonprofit organizations that were in sound financial condition before the onset of the COVID-19 pandemic (the “Pandemic”) and now need loans to help maintain operations during the Pandemic. Loans that originate under the Program have various features to help borrowers facing challenges. The Program, which operates through five loan facilities, offers five-year loans with floating rates and deferred principal and interest payments.[1] The Program supports a broad set of employees and offers full-recourse loans ranging from $100,000 to $300,000,000.[2] This memorandum focuses on eligibility requirements and related facilities related to Program loans to for profit businesses.

Eligibility

To be an “Eligible Borrower” under the Program, the for profit business must meet several requirements. First, it must be a United States-formed company that was in existence before March 13, 2020 with significant operations in and a majority of employees based in the United States. The business cannot be an “Ineligible Business” as defined in 13 CFR 120.110(b)-(j) and (m)-(s), as modified by regulations implementing the Paycheck Protection Program established by § 1102 of the Coronavirus Economic Stabilization Act of 2020 (“CARES Act”). The business must either have 15,000 employees or fewer or have 2019 annual revenues of $5 billion or less. Finally, the business must not have received specific support pursuant to pursuant to §4003(b)(1)-(3) of the CARES Act.

If a business meets all eligibility requirements, it is an “Eligible Borrower.” Eligible Borrowers, however, may only participate in one of the Main Street facilities and must be able to make all the certifications and covenants required under the Program. To apply for Program loans, Eligible Borrowers should contact various lenders and confirm status as an Eligible Lender.

For Profit Loan Facilities

The Program operates through three facilities that lend to for profit businesses: (1) the Main Street New Loan Facility (“MSNLF”), (2) the Main Street Priority Loan Facility (“MSPLF”), and (3) the Main Street Expanded Loan Facility (“MSELF”). All three facilities under the same “Eligible Lender” and Eligible Borrower criteria, and have many of the same features, including the same five-year maturity, LIBOR + 3% interest rate, deferral of principal for two years, deferral of interest for one year and the ability of the borrower to prepay without penalty. Other features of the three facilities, however, differ.

Main Street New Loan Facility

The MSNLF allows for five-year term loans ranging from $100,000 to $35,000,000 to be made to Eligible Borrowers. The maximum size of the loan cannot, when added to the Eligible Borrower’s outstanding and undrawn available debt, exceed four times the Eligible Borrower’s adjusted 2019 EBITDA. The loans cannot be, at any time, contractually subordinated in terms of priority to any of the Eligible Borrower’s other loans or debt instruments.[3]

Main Street Priority Loan Facility

The MSPLF permits five-year term loans ranging from $100,000 to $50,000,000 to be made to Eligible Borrowers. The maximum size of the loan cannot, when added to the Eligible Borrower’s outstanding and undrawn available debt, exceed six times the Eligible Borrowers’ adjusted 2019 EBITDA. At all times, the MSPLF loan must be senior to or pari passu with, in terms of priority and security, the Eligible Borrower’s other loans or debt instruments, other than mortgage debt. Eligible Borrowers may, at the time of origination of the loan, refinance existing debt owed by the Eligible Borrower to a lender that is not the Eligible Lender.[4]

Main Street Expanded Loan Facility

Under the MSELF, Eligible Lenders are permitted to increase an Eligible Borrower’s existing term loan or revolving credit facility. The increase tranche is a five-year term loan ranging in size from $10,000,000 to $300,000,000. The maximum size of a loan made in connection with the MSELF cannot, when added to the Eligible Borrower’s existing outstanding and undrawn available debt, exceed six times the Eligible Borrower’s adjusted 2019 EBITDA. At the time of upsizing and at all times thereafter, the upsized tranche must be senior to or pari passu with, in terms of priority and security, the Eligible Borrower’s other loans or debt instruments, other than mortgage debt.[5]

[1] Effective October 30, 2020, the Federal Reserve reduced the minimum loan size from $250,000 to $100,000 and adjusted the fees to encourage lenders to make smaller loans. Board of Governors of the Federal Reserve System, Main Street Lending Program, https://www.federalreserve.gov/monetarypolicy/mainstreetlending.htm.

[2] Id. at For-Profit Businesses, Frequently Asked Questions, at 11.

[3] See also Main Street New Loan Facility Term Sheet, https://www.federalreserve.gov/newsevents/pressreleases/files/monetary20201030a1.pdf.

[4] See also Main Street Priority Loan Facility Term Sheet, https://www.federalreserve.gov/newsevents/pressreleases/files/monetary20200728a2.pdf.

[5] See also Main Street Expanded Loan Facility Term Sheet, https://www.federalreserve.gov/newsevents/pressreleases/files/monetary20200728a5.pdf.

A Return to Regulation?

10 Nov 2020 00:00:00 -0800

The prospect of a Biden Administration signals the likely return to active and aggressive regulation of environmental matters. In a fashion similar to the Trump Administration’s approach to Obama-era regulations, the Biden Administration has already vowed to not only reverse Trump-era de-regulation but go beyond the Obama Administration’s regulatory efforts.

Perhaps the most glaring example is addressing what the Biden-Harris Transition web-site calls the “existential threat of climate change.” Mr. Biden promises to “recommit the United States to the Paris Agreement on climate change” and to “go much further than that” by “lead[ing] an effort to get every major country to ramp up the ambition of their domestic climate targets.” Indeed, Mr. Biden pledges to “put the United States on an irreversible path to achieve net-zero emissions, economy-wide, by no later than 2050.”

The Paris Agreement calls for “holding the increase in the global average temperature to well below 2 °C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5 °C above pre-industrial levels” through nationally determined contributions (NDC) to carbon emission reductions. The United States’ NDC was a 26-28 per cent reduction below its 2005 level by 2025. According to EPA, gross GHG emissions were reduced between 2005 and 2018 from 7,392 MMT CO2 Eq. to 6,677 MMT CO2 Eq.

It is unknown at this time to what extent Mr. Biden will “ramp up” the United States’ already ambitious climate targets or exactly how Mr. Biden intends to achieve the “ramp up.” He has stated that he would invest billions in clean energy development, that he would transition away from the oil industry by 2050, and that he would phase out or end fracking on federal lands. It is also likely that Mr. Biden would reverse the Trump Administration’s roll-back of the oil and gas sector methane rule.

Another example relates to environmental justice. Mr. Biden states that he wants to “ensure that environmental justice is a key consideration in where, how, and with whom we build” the clean energy infrastructure and go about “righting wrongs in communities that bear the brunt of pollution.” EPA defines environmental justice as the “fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”

Mr. Biden does not provide specifics but does state that a Biden Administration will create “good, union, middle-class jobs in communities left behind,” presumably in clean energy endeavors. The creation of jobs in the clean energy sector may be how he intends to right the wrongs in potentially over-polluted communities, but it is more likely that there will be a greater push to limit or restrict industrial development in such areas.

There are numerous other Trump-era executive orders and regulations that a Biden Administration will likely address. As to the executive orders, they are easily reversed and Mr.; Biden has signaled he plans to do so. As to promulgated regulations, EPA must proceed through the notice-and-comment requirements imposed by the Administrative Procedure Act. However, regulations that are finalized in the last days of the Trump Administration may be subject to repeal under the Congressional Review Act, which was used in 2017 to repeal several Obama-era regulations.

Although there is much speculation at this time, it is likely that the de-regulatory agenda pushed by the Trump Administration will be replaced with a re-regulatory agenda under a Biden Administration. To ensure some growth opportunities remain, industrial concerns will have to oppose the Biden agenda as assertively as the environmental groups opposed the Trump agenda.

2020 Second Extraordinary Session: The Final Tally

10 Nov 2020 00:00:00 -0800

The deadline for the Governor to sign or veto legislation coming out of the 2020 Second Extraordinary Session has passed. A total of sixty (60) Bills were passed and became Acts (or law) out of this session. Of that sixty, only few will directly impact the human resource professional.

For example:

Act 22 (House Bill 66) requires the Louisiana Workforce Commission to take certain steps to enhance the integrity of the state's unemployment insurance program. While none of the steps appear to require any direct involvement of employers, the LWC may implement additional procedures that require action by employers.
Act 40 (Senate Bill 55) requires the Secretary of the Louisiana Workforce Commission to apply Procedure 2 for calendar year 2021. Procedure 2 (applicable when the unemployment trust fund balance range is at least $750,000,000 but less than $1,150,000,000) provides that the taxable wage base shall
be $7,700 and the maximum weekly benefit amount shall be $247.

You can find the text of the new Acts here.

Breazeale, Sachse and Wilson, L.L.P. Ranked in 2021 "Best Law Firms"

05 Nov 2020 00:00:00 -0800

Baton Rouge and New Orleans, LA -- U.S. News & World Report and Best Lawyers®, for the tenth consecutive year, announce the "Best Law Firms" rankings.

Breazeale, Sachse and Wilson, L.L.P. has been ranked in the 2021 U.S. News - Best Lawyers® "Best Law Firms" list regionally in 33 practice areas.

Firms included in the 2021 "Best Law Firms" list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.

The 2021 Edition of "Best Law Firms" includes rankings in 75 national practice areas and 127 metropolitan - based practice areas. Additionally, one "Law Firm of the Year" was named in each nationally-ranked practice area.

Ranked firms, presented in tiers, are listed on a national and/ or metropolitan scale. Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for their abilities, their professionalism, and their integrity.

Breazeale, Sachse and Wilson, L.L.P. received the following rankings in the 2021 U.S. News – Best Lawyers "Best Law Firms":

Regional Tier 1

Baton Rouge
- Administrative / Regulatory Law
- Closely Held Companies and Family Businesses Law
- Commercial Litigation
- Commercial Transactions / UCC Law
- Construction Law
- Corporate Law
- Family Law
- Government Relations Practice
- Health Care Law
- Insurance Law
- Labor Law - Management
- Litigation - Insurance
- Litigation - Intellectual Property
- Litigation - Tax
- Mergers & Acquisitions Law
- Real Estate Law
- Tax Law
- Workers' Compensation Law - Employers
New Orleans
- Commercial Litigation

Regional Tier 2

Baton Rouge
- Appellate Practice
- Banking and Finance Law
- Employment Law - Management
- Medical Malpractice Law - Defendants
- Public Finance Law
New Orleans
- Litigation - Bankruptcy
- Litigation - Labor & Employment
- Mass Tort Litigation / Class Actions – Plaintiffs

Regional Tier 3

Baton Rouge
- Litigation - Construction
- Trademark Law
New Orleans
- Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law
- Labor Law - Management
- Litigation - Real Estate
- Litigation - Securities
- Mergers & Acquisitions Law
- Product Liability Litigation - Defendants
- Securities / Capital Markets Law

Magic Mushrooms and Marijuana: Just Say… "OK?"

05 Nov 2020 00:00:00 -0800

In a move that would have scandalized Nancy Reagan, voters in at least six states and Washington DC decided on Election Day to approve various drug-related initiatives. In light of these changes, employers should review their handbooks, policies, and procedures to determine if the new laws might affect them. To reduce the risk of a charge, claim, or lawsuit alleging disability discrimination, employers should also proceed with caution when disciplining or terminating employees who use marijuana and similar substances for medical reasons.

Putting the fun back in fungi, Oregon voters approved a new measure that allows the use of magic mushrooms (or more specifically psilocybin, the psychedelic compound found in magic mushrooms) for certain medical uses, such as treatment for anxiety and depression. Another successful Oregon measure “decriminalizes” the possession of small amounts of hard drugs like heroin, cocaine, and methamphetamines. Of course, psilocybin, heroine, cocaine, and methamphetamines remain illegal under federal law.

Following Oregon’s lead, voters in Washington DC adopted Initiative 81, which “decriminalizes” the non-commercial cultivation, distribution, possession, and use of “entheogenic plants and fungi.” However, the initiative does not allow for the commercial sale of such plants or fungi.

And while Americans remain divided on some issues, marijuana may no longer be one of them. Denizens of both red and blue states voted to permit use of the drug, which remains illegal under federal law. In Arizona, Montana, New Jersey, and South Dakota, new legislation allows the use of marijuana for recreational purposes, and Mississippi and South Dakota passed initiatives allowing the use of medical marijuana.

To be safe, employers—especially those with physical operations and/or “work-from-home” employees in multiple states—should revisit their employee policies and procedures to ensure compliance with applicable local, state, and federal laws.

Management Update Newsletter Volume 9, Issue 11

03 Nov 2020 00:00:00 -0800

Does State or Federal Law Require Me to Allow Employees Time Off of Work to Vote?

29 Oct 2020 00:00:00 -0800

For most private employers, the answer is NO, there is no state or federal law requiring you to allow employees to miss work in order to vote in state or federal elections.

Louisiana does have a state statute that generally prohibits employers with twenty or more employees from interfering with an employee's ability to participate in politics. Specifically, LSA-R.S. 23:961 states that:

Except as otherwise provided in R.S. 23:962, no employer having regularly in his employ twenty or more employees shall make, adopt, or enforce any rule, regulation, or policy forbidding or preventing any of his employees from engaging or participating in politics, or from becoming a candidate for public office. No such employer shall adopt or enforce any rule, regulation, or policy which will control, direct, or tend to control or direct the political activities or affiliations of his employees, nor coerce or influence, or attempt to coerce or influence any of his employees by means of threats of discharge or of loss of employment in case such employees should support or become affiliated with any particular political faction or organization, or participate in political activities of any nature or character.

Any individual person violating the provisions of this Section shall be fined not less than one hundred dollars nor more than one thousand dollars, or imprisoned for not more than six months, or both; and any firm, corporation or association violating the provisions of this Section shall be fined not less than five hundred dollars nor more than two thousand dollars.

One "clever" employer recently asked if it could allow only those employees that it believed to belong to a certain political party off of work in order to vote next Tuesday. We explained that doing so could very possibly constitute a violation of LSA-R.S. 23: 962, in addition to creating an extremely bad optic for the business.

The bottom line: If early voting numbers are any indication, this will probably be one of the largest voter turn outs in modern history. Although employers have no legal obligation to allow employees off of work in order to vote, realistically many employees are going to miss some work to do so. It would be a good idea to decide how you are going to respond to those situations and to inform your managers of the company voting policy. You do not want to find yourself in a situation where workers are allowed time off to vote depending upon their perceived political affiliation.

Flu Season Is Approaching, Should You Require Employees to Get A Flu Shot?

28 Oct 2020 00:00:00 -0800

In light of the COVID-19 pandemic, getting a flu shot this year is even more important than it has been in the past. (If you don't believe me, talk to the CDC.)

Does this mean that employers should require all their employees to get flu shots? The short answer is NO.

As of this moment, there is no federal or state law (in Louisiana that is) requiring all employers to compel all their employees be vaccinated for the flu. In fact, both the ADA (for persons with disabilities) and Title VII (for sincerely held religious beliefs) provide exceptions that would allow an employee to refuse to be vaccinated. Rather than require vaccinations, the EEOC has stated that "ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it." (Guidance) This Guidance was initially issue by the EEOC in 2009 and it was recently re-issued in March of this year.

This means that although most employers can strongly recommend that employees be vaccinated for the flu, they would also be required to go through the accommodation analysis required by the ADA and Title VII if an employee asked to be excused from the vaccination as an accommodation.

Healthcare Workers: While the reasonableness of a healthcare worker's request to not be vaccinated would be held to higher scrutiny, especially in the case of one who provides direct patient care, the general analysis under the ADA and Title VII will be the same. The existence of a state or local law or administrative guidance recommending vaccinations for healthcare workers and the worker's direct contact with patients will play into the reasonableness, or lack thereof, of the employees request to not be vaccinated.

Employers should ensure that their requests, or mandates as the case may be, that employees be vaccinated are based upon the best available guidance: refer to the CDC and EEOC publications above, and the worker's specific job duties. Whatever policy you land on needs to be clearly communicated to your employees and your supervisors must be trained to respond to employee requests to be exempt from vaccinations. (This should generally entail spotting the issue and immediately reporting it to HR for the appropriate analysis.) And, in the context of all of this communication and analysis, the employee's medical information should be kept confidential.

The CDC Re-Defines "Close Contact"

23 Oct 2020 00:00:00 -0800

On Wednesday, the CDC issued a new Guidance that expands the definition of "close contact" for purposes of exposure to COVID-19.

Under the old Guidance, Close Contact was someone who had been within 6 feet of a COVID-19 positive person for 15 minutes or more.

Under the new Guidance, Close Contact is "Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated."

As you probably recall, the CDC has generally recommended that anyone having Close Contact with a COVID-19 positive individual stay home for fourteen (14) days after their last contact with the COVID-19 positive person.

I do not know what practical impact this new Guidance will have on the average person going about their daily business; I suspect not much. However, this expansion may significantly impact the application of Act 336. You will recall from my prior updates that Act 336 limits liability for civil damages for injury or death resulting from exposure to COVID-19: "...unless the person, government, or political subdivision failed to substantially comply with the applicable COVID-19 procedures established by the federal, state or local agency which governs the business operations and the injury or death was caused by the person's, government's, or political subdivision's gross negligence or wanton or reckless misconduct."

Although we don't yet have any reported cases interpreting this aspect of the Act, it is almost certain that the new CDC Guidance will constitute a "procedure established by a federal agency" with which we must comply in order to enjoy the protections of Act 336. As you can see, this Guidance will significantly expand the scope of employees that you send home to self-quarantine for 14 days after exposure to COVID-19.

The CDC has not established procedures for tracking an employees' cumulative exposure to COVID-19 over a 24-hour period. As an HR professional, I would alter both my written policies and my practices to incorporate this new. Showing that you made a good faith effort to comply with the Guidance may be a critical piece of evidence one day.

NCAA Name, Image, and Likeness ("NIL") Draft Legislation

19 Oct 2020 00:00:00 -0800

The long-awaited first draft of the NCAA NIL legislation has been revealed by the NCAA Division I Name, Image and Likeness Legislative Solutions Group. While the legislation still must be approved by the Division I member institutions in January of 2021; the latest draft provides a glimpse of what the final rule may look like.

The proposed legislation allows student-athletes to do the following and use their NIL to:

Develop businesses and partake in business activities, including establishing camps and clinics and providing private lessons, as long as the student-athlete does not use school logos, colors, or marks.
Endorse products through commercials and appearances, and participate in other business adventures as long as the student-athlete does not use their school name, logo, colors, or other identifying information related to the school that they attend.
Participate in and be compensated for autograph sessions, as long as the session does not occur during a school event, and school logos or marks are not used during the session, including any apparel worn by the student-athlete.
Profit from crowdfunding efforts, such as GoFundMe, to raise money for non-profits or charities, family hardships, and educational experiences.

It is important to note that while athletes are able to profit from the above activities that a student-athlete in no way can use school marks, logos, and other identifying information to link a student-athlete to a specific school. A student-athlete can refer to their involvement in athletics generally but can’t specify what school the athlete attends in any NIL efforts. In addition, student-athletes will be prohibited from doing the following to profit from their NIL:

Profit from commercial activities involving a product or service that conflicts with current NCAA legislation and rules, such as sports betting or gambling.
Receive compensation for NIL activities that conflict with existing school sponsorship arrangements and deals or other institutional values.

Thus, there will be some limits placed on what NIL arrangements a student-athlete may enter into. The details of exactly what a school can prohibit a student-athlete from entering into as contrary to “institutional values” have not been clearly defined and may cause issues upon final adopting of the rule if not further define.

Another significant change, as presented in the draft legislation, is that student-athletes will be allowed to enter into relationships with agents. The current NCAA rules prohibit a student-athlete from agreeing to be represented by an agent in the marketing of their athletic ability, and if such representation occurs, a student-athlete is ineligible for participation. But, the draft NIL legislation will allow student-athletes to enter into relationships with agents to do the following:

To obtain advice for NIL ventures and business opportunities.
Assist in NIL contract negotiations.
Receive marketing assistance with all NIL activities.

If a student-athlete does choose to enter into a relationship with an agent to help with NIL efforts, the athlete must disclose their relationship to their respective institution and a third-party administrator. The third-party administrator, who remains to be named, will monitor all student-athlete NIL activities and evaluate activities for any potential rules violations.

While the NIL legislation mainly focuses on current NCAA student-athletes, recruits will also profit from their NIL and enter into business arrangements before attending college. If a recruit chooses to participate or enter into any NIL arrangements, they will be required to disclose all their NIL contracts and deals before signing with an institution. In addition, boosters and donors will be able to work with and enter into arrangements with student-athletes, as long as no improper inducements or extra benefits are provided. Thus, boosters are will not be able to enter into a NIL arrangement with a recruit that is to influence the recruit to attend a certain institution.

The first draft of the NIL legislation continued to be revised and modified before the final draft is presented for institutional approval at the annual NCAA Convention in January of 2021. Furthermore, additional details will need to be worked out and established by the NCAA institutions themselves to warrant student-athletes NIL efforts are compliant with the rules and that the institutions are not involved in the athletes NIL efforts.

The proposed NIL legislation is going to change the world of collegiate athletics as we know it. If you are thinking about venturing into any NIL activities, it is important to seek advice from professionals who are familiar with the legislation and business impacts surrounding NIL decisions and arrangements. Breazeale, Sachse, and Wilson is monitoring the progress of the NIL legislation closely to be ready to provide any advice and guidance to student-athletes, business owners, and any other parties who are seeking to participate in NIL activities