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Buchalter COVID-19 Client Alert: San Francisco Moves to Lowest COVID Tier in California, Begins Process of Reopening Non-Essential Offices; Other Bay Area Counties Slower to Follow
Buchalter, November 2020

On October 20, 2020, San Francisco County was upgraded to the “minimal” tier within the California COVID-19 tracking system, meaning it has the fewest restrictions on reopening all businesses as promulgated by the State of California. In order to qualify for the “minimal” tier, a county must have an infection rate of less than one daily new positive COVID case per 100,000 residents and have a positive test rate of less than 2% for two consecutive weeks...

Federal Banking Regulatory Agencies Issue Notice of Proposed Rulemaking Re: The Role of Supervisory Guidance
Buchalter, October 2020

On October 29, the OCC, the Federal Reserve, the FDIC, the NCUA and the CFPB (collectively, the “agencies”) issued a Notice of Proposed Rulemaking (“NPR”) to clarify and make into a rule the prior Interagency Statement Clarifying the Role of Supervisory Guidance issued on September 11, 2018 (“2018 Statement”).  Comments on the NPR are due within 60 days of the date the NPR is published in the Federal Register...

OCC Issues Final Rule Defining “True Lender” – A Bank is the “Lender” if it is Named the Lender in the Loan Documents or if it Funds the Loan
Buchalter, October 2020

On October 27, the Office of the Comptroller of the Currency issued a final rule that establishes a new standard for when a national bank or Federal savings association (“bank”) is the “true lender” in a lending arrangement with a third party.  This rule may have significant impact on bank’s partnerships and other arrangements with non-bank third parties, including bank-FinTech partnerships...

Malpractice Liability Considerations for Telehealth
Buchalter, October 2020

  As the use of telehealth continues to increase, providers need to be mindful of the liability laws in the jurisdictions that they operate in. Similar to in-person medical practices, telehealth services carry liability and malpractice risks. Once a provider virtually crosses a state line, he or she becomes subject to the liability laws of the other state...

Buchalter COVID-19 Client Alert: CFPB Issues Rule Extending the “GSE Patch”
Buchalter, October 2020

On October 20, the Consumer Financial Protection Bureau (CFPB) issued a final rule extending the Government Sponsored Enterprise “GSE Patch”, which was set to expire on January 10, 2021...

Buchalter COVID-19 Client Alert: New PPP Guidance Simplifies Forgiveness Application Process for Small PPP Loans of $50,000 or Less; Clarifies Lenders’ Responsibilities Regarding Review of Borrower Calculations and Documentation of Forgivable Eligible Costs for Such Small Loans
Buchalter, October 2020

On October 8, Treasury issued a new Interim Final Rule Re Additional Revisions to Loan Forgiveness and Loan Review Procedures Interim Final Rules (new IFR), along with a new Loan Forgiveness Application Form 3508S and Instructions for the new Form, addressing applications for forgiveness of PPP loans of $50,000 or less.  Links to the new IFR, the new Form 3508S, and the new Instructions for Form 3508S are set out below...

CFPB Withdraws Former Marketing Services Agreement Guidance; Issues New Frequently Asked Questions Regarding RESPA Section 8 and MSAs
Buchalter, October 2020

On October 7, the Consumer Financial Protection Bureau (CFPB) took steps to clarify its interpretation of how settlement service providers may comply with the “no kickback” and “unearned fee” provisions of Section 8 of the Real Estate Settlement Procedures Act (RESPA) by promulgating a new set of Frequently Asked Questions (FAQs). The FAQs provided several concrete examples to shed light on what activities are allowed under those provisions...

Buchalter COVID-19 Client Alert: California Extends Validity of Housing Entitlements During the COVID-19 Crisis
Buchalter, October 2020

On September 28, 2020 Governor Gavin Newsom signed into law Assembly Bill (“AB”) 1561, which extends “by 18 months the period for the expiration, effectuation, or utilization of a housing entitlement” that was in effect on March 4, 2020 and will expire prior to December 31, 2021...

Buchalter COVID-19 Client Alert: California Extends Local Ability to Enact Commercial Eviction Moratoriums and Questions Abound for Local Governments, Tenants and Landlords
Buchalter, October 2020

On September 23, California Governor Gavin Newsom issued an executive order extending the ability of local jurisdictions to enact their own eviction moratoriums on commercial tenancies from September 30, 2020 to March 31, 2021. This extension follows weeks of pressure from mayors and county officials throughout California who argued that a wave of commercial evictions would be coming if no action was taken legislatively or executively by September 30...

Buchalter COVID-19 Client Alert: SBA Issues New PPP Guidance Regarding Required Approval for a Sale of Assets or Transfer of Ownership of a PPP Borrower; Use of Escrow Accounts to Avoid Requirement of Prior SBA Approval
Buchalter, October 2020

On October 2, the SBA issued SBA Procedural Notice 5000-20057, Paycheck Protection Program Loans and Changes of Ownership (“Notice”).    A link to the Notice is set out below...

Buchalter COVID-19 Client Alert: California Employers Will Soon Have to Take Action upon Notice of Potential Covid-19 Exposure within One Business Day
Buchalter, October 2020

On September 17, 2020, Governor Gavin Newsome signed AB 685 into law.  Effective January 1, 2021, AB 685 makes several changes to the California Labor Code regarding occupational exposure to COVID-19.  This includes authorizing Cal-OSHA to essentially shut down a workplace if it determines that the risk of COVID-19 exposure constitutes an imminent hazard to employees...

Buchalter COVID-19 Client Alert: Federal Reserve Announces Main Street Lending Program Will Accept Multi-Borrower Loans and Issues New FAQs Outlining Requirements; Announces Acceptance of Non-Profit Borrower Loans; Alters Standards for Lenders When Evaluating Borrowers; and Provides Guidance on Insider Loans and Compensation Treatment
Buchalter, September 2020

On September 18, 2020, the Federal Reserve issued new Frequently Asked Questions (FAQs) for its Main Street Lending Program (MSLP)...

Buchalter COVID-19 Client Alert: Guidance in Implementing San Francisco Department of Public Health COVID-19 Health Screening Forms
Buchalter, September 2020

San Francisco’s Department of Public Health (“SFDPH”) issued yet-another update to its Shelter-in-Place Order, C19-07, on September 14, 2020 (now up to version “i”). This order has been frequently modified to reflect changes in other state and local directives, as more is learned about the disease and as more businesses are allowed to re-open...

Ninth Circuit Sharply Curtails Excess Insurers’ Ability to Challenge Propriety of Primary’s Exhaustion in AXIS Reinsurance Co. v. Northrop Grumman Corp.
Buchalter, September 2020

When a company is faced with defending itself against a large claim, it often requires the availability of insurance proceeds from not just the company’s primary insurer, but also from its excess insurance layers.  In this scenario, however, excess insurers sometimes will refuse to step in after exhaustion of the underlying insurance layers, arguing that the exhaustion of those underlying layers was wrongful due to payments for uncovered claims...

Buchalter COVID-19 Client Alert: Entrapment-by-Estoppel: A Potential Future Defense for Lenders in PPP Fraud Cases
Buchalter, September 2020

By: Joshua M. Robbins, Michael C. Flynn, and Robert S. Gillison The past decade has taught lenders much about regulatory enforcement risk.  In the fallout of the 2008 financial crisis and collapse of the housing and related markets, the Department of Justice and other agencies aggressively stepped up investigations of lenders seen as complicit in the misconduct of borrowers and others...

Hotel Bankruptcies: 8 Key Issues for Hospitality Advisors
Buchalter, September 2020

The COVID-19 pandemic has forced many hospitality professionals and their clients to confront bankruptcy, insolvency, and loan workout issues for the first time since the Great Recession.  Chapter 11 presents a host of unique issues for hotels and other hospitality businesses...

California Supreme Court Clarifies Bounds of Legitimate Competition Under Tort and Antitrust Law
Buchalter, September 2020

On August 3, 2020, the California Supreme Court issued its highly anticipated decision in Ixchel Pharma, LLC v. Biogen, Inc., clarifying the bounds of legitimate competition under California tort and antitrust law.  The Court’s ruling generally came down in favor of encouraging competition, reducing claims for tortious interference with contract, and decreasing the risk of litigation arising from normal competitive activity...

Newly Enacted California Consumer Financial Protection Law (AB 1864) Reorganizes and Renames Financial Institutions Regulator for Expanded Oversight of Certain Consumer Financial Services Innovation Sector
Buchalter, September 2020

By: Michael Flynn and Melissa Richards Introduction California has enacted a new California Consumer Protection Law (CCFPL), California Financial Code Section 90001 et seq.  The CCFPL will convert the Department of Business Oversight (DBO) into a new Department of Financial Protection and Innovation (DFPI).  AB 1864 was sent to the California Governor on September 4, 2020 for signature, and he is expected to sign within thirty (30) days...

Some Relief for Generators of Retail Hazardous Waste in Sight
Buchalter, September 2020

On September 1, the California legislature sent to the Governor amendments to California’s Hazardous Waste Control Law. Once signed by the Governor, AB 2920 will allow retail hazardous waste to be shipped on a “consolidated manifest.” This simplified procedure has been available for specific types of hazardous waste such as used oil, but this is the first time it has applied a broad, general category such as “retail hazardous waste...

Buchalter COVID-19 Client Alert: The Future of California Evictions in the COVID Era - California Judicial Council Votes to End Statewide Eviction Moratorium
Buchalter, September 2020

On Thursday, August 13, the California Judicial Council elected to rescind Emergency Rules 1 and 2 related to eviction and foreclosure actions in California applicable to both residential and commercial properties, effective September 1, 2020. Emergency Rules 1 and 2, previously put in place on April 6, prevented all unlawful detainer and foreclosure actions statewide, except in cases of public health or safety...

Some Relief for Generators of Retail Hazardous Waste in Sight
Buchalter, September 2020

On September 1, the California legislature sent to the Governor amendments to California’s Hazardous Waste Control Law. Once signed by the Governor, AB 2920 will allow retail hazardous waste to be shipped on a “consolidated manifest.” This simplified procedure has been available for specific types of hazardous waste such as used oil, but this is the first time it has applied a broad, general category such as “retail hazardous waste...

Buchalter COVID-19 Client Alert: The Future of California Evictions in the COVID Era - California Judicial Council Votes to End Statewide Eviction Moratorium
Buchalter, September 2020

On Thursday, August 13, the California Judicial Council elected to rescind Emergency Rules 1 and 2 related to eviction and foreclosure actions in California applicable to both residential and commercial properties, effective September 1, 2020. Emergency Rules 1 and 2, previously put in place on April 6, prevented all unlawful detainer and foreclosure actions statewide, except in cases of public health or safety...

Buchalter COVID-19 Client Alert: Expansive New National COVID-19 Related Residential Eviction Moratorium Order Issued by the CDC
Buchalter, September 2020

The Centers for Disease Control and Prevention has issued an order titled “Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID-19” (“Order”) forbidding evictions of residential tenants who do not exceed certain income levels (generally $99,000 for an individual), are unable to make full rental payments due to substantial loss of income, loss of job, or extraordinary medical expense, and have exhausted all available governmental sources o

Windfalls and Pitfalls of Pivoting Your Business Model in the New Business Environment
Buchalter, September 2020

It is no secret that the world has rapidly changed over the last several months. Many companies are reevaluating their business models to adjust to the challenges caused by the world-wide pandemic and to hopefully identify new business opportunities that may arise as a result of a new business environment...

Executive Order Payroll Tax Deferral: Guidance and Considerations
Buchalter, September 2020

On August 8, 2020, the President of the United States issued a Presidential Memorandum directing the Secretary of the Treasury to use his authority pursuant to section 7508A of the Internal Revenue Code to defer the withholding, deposit, and payment of certain payroll tax obligations for the remainder of 2020. In Notice 2020-65, the IRS provides guidance implementing the payroll tax deferral.  What wages are eligible?  Eligibility is subject to income limits...

 

 

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