Nonprofit Alerts
- USA v. Agri Stats Case Brief 10.13.23The Department of Justice has filed an antitrust suit against Agri Stats Inc. alleging an illegal price-fixing scheme through the company’s information sharing program. This action marks the first notable case in the wake of the Department’s revision earlier this year of several “safe harbors” for association information sharing programs and could have a significant impact on the development of the law in this area.
- DOJ Information Sharing Supplement 9.14.23This past February, the Department of Justice (the “DOJ”) withdrew its support from three antitrust enforcement policy statements with applicability that includes the issue of information exchanges amongst competitors. In July, the Federal Trade Commission (the “FTC”) also withdrew its support for these safe-harbor policy statements. The actions by the Federal antitrust enforcement authorities have resulted in some uncertainty amongst associations, for which statistical reporting programs are a longstanding activity.
- FTC Endorsement Guidelines 8.29.23The Federal Trade Commission (“FTC”) has issued a revised Endorsement Guidelines (hereafter, “Updated Guidelines”) nearly a year after seeking public comment on its initial proposal. The Updated Guidelines are not themselves law but describe the principles that the FTC uses to determine whether endorsements are deceptive under the FTC Act. These new Guidelines are intended to heighten enforcement against deceptive online endorsements, primarily in social media.
- DOJ Information Sharing Policy 2.17.23On February 3rd, the Department of Justice (“DOJ”) withdrew its support from three antitrust enforcement policy statements with applicability that includes the issue of information exchanges. The policy statements in question were specifically related to antitrust enforcement in health care, but they have traditionally been relied upon as general antitrust guidance in other fields and industries.
- FTC Non-Competes NPRM Supplement 1.19.23 In our previous Alert dated January 10th, we updated you on the Federal Trade Commission’s Notice of Proposed Rulemaking (NPRM) regarding a sweeping ban on non-compete agreements.
- FTC Proposal on Banning Non-Compete Clauses 1.10.23On January 5, 2023, the Federal Trade Commission (“FTC”) issued a notice of proposed rulemaking (“NPRM”) to prohibit employers from entering non-compete agreements with workers.
The FTC has voted 3-1 to publish an NPRM that proposes a sweeping ban on noncompete agreements. The NPRM now enters a public comment period, where comments must be received by no later than March 6, 2023. - D.C.’s Non-Compete Clarification Amendment Act of 2022 9.19.22In an important step, the D.C. Council has agreed on a compromise amendment that will make the District’s Ban on Non-Compete Agreements legislation significantly less restrictive. Whereas the original bill would have been one of the most stringent in the country – banning virtually all non-compete agreements – the amended Act will now specifically exclude “highly compensated” employees from the non-compete ban and will allow for provisions designed to protect employers’ confidential and proprietary information from the definition of a “non-compete provision.”
- Speaking Engagement – ASAE Webinar 2.23.21
ASAE presents Navigating a Successful Return to the Office - Firm Speaking Engagement – ABA Webinar 1.28.21
ABA, Section of Taxation, 2021 Mid-Year Meeting (Exempt Organizations Committee) – The Election is Over – Or Is It? (Post-Election Activities) - EMPLOYEE NON-COMPETE AGREEMENTS, ANTI-MOONLIGHTING POLICIES SOON TO BE VOID IN D.C. 2.12.21
The recently passed D.C. Ban on Non-Compete Agreements Amendment Act of 2020 (the “Act”) is amongst the broadest in the country and prohibits employers from barring any employee from working for competitors not only after their employment ends, but also during their employment.
The Act is far-reaching by voiding all covered non-compete provisions entered into after the Act takes effect; however, pre-existing non-compete agreements will continue to be enforceable. The Act’s projected effective date is March 19, 2021. - SBA PPP Loan Application Firm Update 1.14.21
Starting this week, applicants may apply for “first draw” and “second draw” loans from the U.S.Small Business Administration’s (“SBA”) Payment Protection Program (“PPP”).As WC&B detailed in an earlier nonprofit alert, housing cooperatives, nonprofit public broadcasting entities, nonprofit destination marketing organizations, §501(c)(6), and §501(c)(3) nonprofit organizations are eligible for funding. - NONPROFIT RELIEF EXPANDED UNDER THE NEW COVID-19 STIMULUS BILL 12.29.20
For the first time, nonprofit organizations that are exempt from federal income tax under §501(c)(6) are eligible recipients of Paycheck Protection Program (PPP) loans under the recently signed Economic Aid to Hard-Hit Small Businesses, Nonprofits and Venues Act (the “Act”)1, and nonprofit organizations that are exempt from Federal income tax under §501(c)(3) are eligible for additional funding. Not later than January 6, 2021, the Small Business Administration (SBA) must publish emergency regulations to implement the new loan provisions. - Payroll Tax Deferral
On August 8, 2020, President Trump signed a memorandum directing the Secretary of the Treasury, pursuant to §7508A of the Internal Revenue Code, and effective for wages paid between September 1st and December 31st, to “defer the withholding, deposit, and payment” of the employee’s share of the Social Security tax. This is the 6.2% tax on employees’ wages, up to the Social Security wage base. - MANDATED COVID-19 STANDARDS FOR COVERED VIRGINIA EMPLOYERS
Virginia’s COVID-19 Emergency Temporary Standard (“ETS”) became effective on July 27, 2020. The federal Occupational Safety and Health Act gives States an opportunity to administer their own COVID-19 workplace safety and health programs, and Virginia is the first state to do so through the ETS. The ETS is designed to supplement and enhance existing COVID-19 related laws, rules, regulations, and standards under the Virginia Occupational Safety and Health (VOSH) program. - EMERGENCY RENT FREEZE AND TENANT PAYMENT PLANS FOR CERTAIN D.C. COMMERCIAL PROPERTY
Under the Coronavirus Support Congressional Review Emergency Amendment Act of 2020 [Effective from June 9, 2020] and the Coronavirus Support Clarification Emergency Amendment Act of 2020 [Effective From June 9, 2020], the D.C. Council enacted emergency measures for the health, safety, and welfare of District residents and businesses (the Act). Under the Act, among many other measures, commercial rent for certain leased premises is not to increase. - Firm Update Re the Paycheck Protection Programs
Recent Guidance Regarding the Paycheck Protection Program’s “Need” Certification and PPP Loan Eligibility. In March, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act to blunt the impact of an economic downturn created by the COVID-19 pandemic. Included in the CARES Act is the Payment Protection Program (PPP), a program overseen by the U.S. Small Business Administration (SBA), aimed at providing financial relief to small businesses, including some non-profit organizations, affected by COVID-19 through forgivable loans. - EEOC Answers to COVID-19 Questions
Hundreds of public questions about COVID-19 were submitted to the Equal Employment Opportunity Commission (EEOC). The EEOC created the “Ask the EEOC” Webinar on March 27, 2020, to answer some of these top-level questions. Guidance is provided on how to respond to the pandemic under federal employment nondiscrimination laws the EEOC enforces, including Title VII, Age Discrimination in Employment Act, the Americans with Disabilities Act, the Rehabilitation Act, and the Genetic Information Nondiscrimination Act. - Update Re COVID 19 Phase 3
On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The CARES Act, a $2.2 trillion package, contains a mixture of different relief measures for businesses, including non-profit organizations, state and local governments, and individuals. The CARES Act is the third phase of the federal government’s response to the COVID-19 pandemic. - Firm Update Re COVID 19 Phase 1
The novel COVID-19, commonly known as the coronavirus, has significantly disrupted daily life all over the United States. Congress has responded by passing two phases of coronavirus-related legislation: the Coronavirus Preparedness and Response Supplemental Appropriations Act (“Coronavirus Supplemental”) (Phase 1) and the Families First Coronavirus Response Act (Phase 2) (see our Alert here). - 3.26.20 COVID 19 Response Legislation
The Coronavirus Disease 2019 (“COVID-19”) has significantly disrupted daily life all over the United States. In response, Congress has taken legislative action. To date, Congress has passed the Coronavirus Preparedness and Response Supplemental Appropriations Act (Phase 1) and the Families First Coronavirus Response Act (Phase 2). - NEW YORK’S SHIELD ACT – IT’S COMPLIANCE TIME
The New York Stop Hacks and Improve Electronic Security Act1 (“SHIELD Act”) aims to reduce the likelihood of data breaches by requiring robust data security programs. To reduce the risk of a data breach, by March 21, 2020, any person or business (including nonprofit organizations) that owns or licenses private information of a resident of New York shall develop a data security program. - U.S. Department of Justice Antitrust Probe Into Automakers’ Agreement With the California Air Resources Board
Associations should take note of a recent and ongoing antitrust investigation by the U.S. Department of Justice (DOJ) into alleged, concerted activity by four automakers with the California Air Resources Board (CARB), an agency of the State of California. - Mississippi Telephone Solicitation Act (June 5, 2019)
Charities registered to solicit contributions in Mississippi recently received a notice from the Secretary of State’s office, alerting them to new registration requirements under the Mississippi Telephone Solicitation Act. A copy of the notice is reprinted at the end of this Alert. We have received questions about this notice from many clients. This Alert responds to those questions. - EU General Data Protection Regulation (GDPR): Overview for U.S. Nonprofit Organizations
Beginning on May 25, 2018, new privacy legislation in the European Union could require companies around the world, including some U.S. nonprofit organizations, to change the way they collect and handle personal information of individuals in the EU. - Recent Developments Regarding The Canadian Anti-Spam Law
Three years ago on July 1, 2014, the Canadian Government enacted the Canadian Anti-Spam Law (“CASL”), regulating the sending of commercial electronic messages (“CEMs”) and other activities such as unsolicited installation of computer programs and email harvesting. - Coca-Cola and the American Beverage Association sued for deceptive marketing practices
On January 4, 2017, the Center for Science in the Public Interest and the Public Health Advocacy Institute, on behalf of the nonprofit Praxis Project (together “the Plaintiffs”), sued the Coca-Cola Company and the American Beverage Association (“ABA”) in a California Federal district court. - Assessing the Impact of China’s Foreign NGO Law
On January 1, 2017, a new Chinese law will go into effect that has the potential to greatly impact the way that nonprofits conduct business in the country. - Beginning January 1, 2016, all D.C. Employers of 20 or More, Including Nonprofits, Must Provide a Transit Benefit
Beginning on January 1, 2016, a provision of a 2014 DC law takes effect and mandates that businesses with addresses in the District of Columbia which have 20 or more employees must provide one of the following transit benefits to its employees… - Monetizing Your Activities: Is it Taxable?
Making money is a good thing, right? A tax-exempt organization generally does not pay taxes on its income, whether that income is from dues, donations, investments, or sale of certain goods and services. - How to be an Effective Association Director
It is important for association Directors to understand their role in the association’s governance and operational structure. - New Rules For Employers in the District of Columbia
Two recent pieces of legislation will impact employers in the District of Columbia: the Wage Theft Prevention Amendment Act of 20141 (“Wage Theft Act”) and the Fair Criminal Record Screening Amendment Act of 20142 (“Criminal Screening Act”). - Theft and Embezzlement: A Diligence Checklist
Recent media attention to fraud in the nonprofit community has provided a wake-up call for associations that may need to get better at protecting their assets. - No Longer Overlooked: States Tighten Requirements, Increase Enforcement of Charitable Solicitation Laws
Charities once basked in the glow of public trust, but a stream of high-profile fraud cases changed the perception of nonprofits, leading legislatures to enact laws intended to protect citizens from unscrupulous intentions. - Canadian Anti-Spam Law Impacts U.S. Nonprofits
Canada’s anti-spam legislation (known as CASL) takes effect on July 1, 2014 and is much broader than the U.S. CAN-SPAM law because it requires an opt-in. - IRS Announces it Will Re-Propose Regulations Defining Political Activity for 501(c)(4) Exempt Organizations
In November, 2013, Treasury published proposed regulations that would have substantially expanded the definition of political activity solely for purposes of determining whether a §501(c)(4) “social welfare” organization was primarily engaged in social welfare activity (including lobbying, but excluding political activity). - What to Watch for When Negotiating Commercial Office Leases
Your association makes a big financial commitment when it enters into a lease agreement for office space. To get the best outcome, make sure you understand the legal and business issues you will need to negotiate with a potential landlord before you sign on the dotted line. - Supreme Court Invalidates Aggregate Contribution Limits
On April 2, 2014, the Supreme Court in McCutcheon v. FEC, struck down the biennial aggregate contribution limits, in effect since 1974, holding such limits are invalid under the First Amendment. - IRS Issues Political Activity Proposed Regulations: Comments due February 27, 2014
On November 29, 2013, the Internal Revenue Service issued proposed regulations addressing certain political – or politically tinged – activities by §501(c)(4) organizations. The stated intent is twofold: (1) to make determinations of what activities are “political” more black-and-white; and (2) to broaden the scope of what is considered to be “political activity” by §501(c)(4) organizations.