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Back to the Past: NEPA Rule Changes Restore Provisions

On April 20, 2022, in the first leg of a two-phase process, the Council on Environmental Quality (CEQ) issued its final rule amending its regulations for implementing the National Environmental Policy Act (NEPA).  To be effective May 20, 2022, the amendments restore provisions that were in effect for forty-two years before being modified in 2020 by the Trump administration. These “Phase 1” changes focus on the (a) purpose and need of a proposed action, (b) an agency’s NEPA procedures for implementing the rules, and (c) the definition of “impacts’ and “effects.”

Using a Nevada Incomplete Grantor Trust as Part of a Business Exit Strategy

This article provides an overview of the tax-saving benefits pre-sale planning has for business owners in the context of using a Nevada Incomplete Non-Grantor Trust (NING) as part of a business sale. A NING is an irrevocable trust designed to reduce or eliminate potential state income taxes and capital gains taxes upon the sale of a business. Additionally, these trusts offer excellent asset protection for sellers. Generally, NINGs are used by business owners living in high-income-tax states who seek to minimize or eliminate their state income taxes. The NING exists as a form of tax arbitrage to save business owners the cost of state income and federal gift taxes but still permits future asset control by the settlor.

OSHA to Publicize Employers’ Injury and Illness Data Under Proposal, Announces Separate Enforcement Focus

With a stated goal of increasing transparency and preventing workplace injuries and illness, employers across a wide spectrum of industries need to be aware of two separate recordkeeping and reporting efforts by OSHA.  On April 5, 2022, the agency outlined a new enforcement initiative for employers failing to submit 300A annual electronic submissions as required under 29 CFR 1904.41.  OSHA’s new enforcement priority comes on the heels of the agency’s March 28, 2022, proposed rule that would significantly alter the manner and methodology of workplace injury and illness reporting.

Family Trust Companies

Nevada law provides an efficient way for successful families to manage their business and family affairs for multiple generations by using a Nevada Family Trust Company (NFTC or FTC). Nevada Revised Statutes Chapter 669 (NRS 669) allows families to create an NFTC to serve as a private fiduciary as part of the family office. The NFTC is a unique organization utilized to manage and hold family assets through corporate entities and associated trusts. The private trust company offers significant estate planning and asset protection advantages for a family office. An FTC provides increased privacy, flexibility, and control compared to traditional commercial trustee services. A private trust company also fosters intangible benefits like promoting family leadership, cultural and business succession, and family cohesion when dealing with family business interests.

This article outlines the necessary requirements to establish an NFTC and examines the core features and benefits an FTC offers clients.

SEC to Require Disclosure of Climate-Related Risks and Greenhouse Gas Emissions, Citing Investor ESG Demand

Publicly traded companies will be required to disclose climate-related risks to investors under a newly announced U.S. Securities and Exchange Commission (SEC) proposed rule.  On March 21, 2022, the SEC announced proposed rule amendments regarding disclosure of climate-related risks and impacts from greenhouse gas emissions (GHG).  Citing the growing demand from investors regarding environmental, social, and governance (ESG) issues, and what the SEC calls “fragmented and inconsistent” disclosure requirements, the SEC’s proposed rule amendments will be issued in the Federal Register in the coming weeks for public comment.

Senate Bill Introduced to Make Permanent Bankruptcy Code’s $7.5 Million Debt Limit for Subchapter V Cases

On March 14, 2022, Senator Charles Grassley of Iowa introduced Senate Bill 3823 entitled the “Bankruptcy Threshold Adjustment and Technical Corrections Act” into the United States Senate (the “Bill”), which proposes amendments to Subchapter V of Chapter 11 of the United States Bankruptcy Code (the “Code”) and to Chapter 13 of the Code. The Bill is initially co-sponsored on a bipartisan basis by Senators John Cornyn of Texas, Dick Durbin of Illinois, and Sheldon Whitehouse of Rhode Island.

EPA Issues Guidance Addressing Implementation of $43 Billion Water Infrastructure Funds

On March 8, 2022, the U.S. EPA issued a memorandum to guide equitable funding decisions to support the agency’s purpose in providing flexibility to local water treatment providers and increasing investments in disadvantaged communities.  Water treatment providers, municipalities, and other entities seeking to obtain and procure infrastructure funding will want to carefully review and consider EPA’s guidance.

Seventh Circuit Clarifies Standards for ‘Consumer Debt’ and ‘Misrepresentation’ in Identity Theft FDCPA Cases

Brief Executive Summary

In Woods v. LVNV Funding, the Seventh Circuit Court of Appeals clarified two standards for FDCPA claims in identity theft cases. First, the court somewhat lowered the required showing to prove that a debt is a “consumer debt” at the summary judgment phase, noting that the FDCPA does not “require absolute certainty on this point.” Second, the court heightened the standard that debtors must meet in alleging false or misleading statements in identity theft cases, explaining that “literal falsity is not the standard under” the FDCPA, and, where a report is based on an identity mismatch that a debtor can easily determine is not his own, there is no liability.

Environmental Enforcement in Colorado

The EPA and Colorado Partnership For Environmental Justice

Colorado focuses on environmental justice as a core priority. In 2021, Governor Polis signed the Environmental Justice Act (HB21-1266) into law, and subsequently appointed members to Colorado’s first Environmental Justice Advisory Board. The Colorado Department of Public Health and Environment (CDPHE) then launched the new Environmental Justice Action Task Force and the agency created a new Environmental Justice Unit to reduce environmental health disparities for communities of color and low-income communities across Colorado.

Challenge to Colorado Air Quality Rules Dismissed

Weld County Lacks Standing to Challenge New Oil and Gas Air Rules

On February 24, 2022, a division of the Colorado Court of Appeals upheld a district court’s dismissal of a challenge to regulations issued by the Colorado Air Quality Control Commission (“Commission”) which address oil and gas operations.  In Bd. of Cnty. Comm’rs v. Ryan, the appellate court addressed whether Weld County had standing to seek judicial review of the air quality rules. See opinion here.

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