Articles

Using IRAs to make gifts and satisfy your Required Minimum Distribution

By Maine Taxes, Wills & Estate Planning

The SECURE Act became law in January 2020.  It stands for Setting Every Community Up for Retirement Enhancement, which means it changes some of the rules to our retirement accounts. We at Perkins Thompson are ready to review how the SECURE Act affects your estate plan. This writing discusses the strategy to make charitable gifts from a traditional IRA.  There are other facets to the SECURE Act that we will continue to address. Read More

Timber Trespass: Unlawful Cutting of Trees

By Litigation, Real Estate

Under Maine law, an individual who cuts down a tree or trees on another’s property without permission may be liable for timber trespass.  Pursuant to 14 M.R.S. §7552, an individual may not cut down, destroy, damage or carry away any forest product or tree on land belonging to another without the property owner’s permission.  Anyone that does, may be liable for the following: Read More

Parting Ways Over Property: Partition Actions in Maine

By Litigation, Real Estate

Co-ownership of property among family members or unrelated parties is common in Maine. While co-ownership can make property more affordable, problems often arise when the owners cannot agree on use of the property, how to allocate the costs associated with maintenance and/or improvements, or if/when to sell the property.

When co-owners cannot resolve property disputes amongst themselves, a co-owner has the right to seek a partition of the property through the court system.  Depending on the form of partition action initiated, the court will order the physical division of the property (also known as a “statutory partition”) or order an equitable resolution, such as a timeshare or buyout (an “equitable partition”) to resolve the dispute. Read More

A Legal Checklist for Early-Stage Tech Companies

By Business, Intellectual Property, Software & Startups, Start-Up and Entrepreneurship Law

Download the Legal Checklist for Early-Stage Tech Companies

In a tech company’s early days, it’s easy for the founders to make legal missteps.  Most mistakes are unintentional and result from a lack of knowledge or legal budget rather than bad intent. Nonetheless, it’s critical to remedy them as the company moves forward.  Failure to do so can place the company in breach of its business-to-business contracts; it can create uncertainty about the company’s ownership of its intellectual property; and it can create a host of operational risks.  It can also kill or devalue outside investment deals when investors discover these problems in their due diligence. Read More

Advance Healthcare Directives Explained

By Maine Taxes, Wills & Estate Planning

An advance healthcare directive lays out your wishes and provides instructions for your healthcare providers to follow when you are no longer able to speak for yourself regarding your medical care.  A directive may be written or spoken but it is much better to prepare an advanced healthcare directive in writing to make sure your desires are reflected accurately and to avoid confusion and misunderstandings down the road.  The directive can include instructions concerning your medical care, healthcare providers and treatment facilities, as well as your wishes when it comes to end of life decisions, organ donations and funeral arrangements. Read More

Tapping Your IRA or 401(k) Plan to Weather the Coronavirus

By Coronavirus, Maine Taxes, Wills & Estate Planning, Tax

In March, U.S. lawmakers passed a coronavirus relief and stimulus package to help Americans weather the economic shutdown.  The package includes changes to retirement plan rules to make it easier for people to take early withdrawals and loans from retirement accounts and IRAs.

Allowing such early withdrawals and loans may be helpful in providing cash for living expenses and avoid the need to tap into credit cards or personal loans to pay bills.  However, the downside of tapping into retirement plan savings is that by so doing the taxpayer may have some long-term detrimental impacts on their retirement. Read More

Paycheck Protection Program Flexibility Act of 2020 Signed into Law

By Coronavirus, Labor and Employment

Congress has taken action to provide more flexibility for when and how businesses may use Payroll Protection Program (PPP) loan proceeds and maintain eligibility for forgiveness.  The Paycheck Protection Program Flexibility Act of 2020 was signed into law June 5, 2020, after having cleared the Senate on a voice vote two days ago.  The text of the new law can be seen here. Read More

COVID-19 Waivers of Liability

By Coronavirus

As Maine begins its phased re-opening in the midst of the coronavirus pandemic, the risk of exposure to the virus will become more prevalent as members of the public begin to patronize businesses.  Business owners will be taking measures to protect their customers and employees, yet they will remain vulnerable to claims of negligence by those who contract the virus.  In this new environment, business owners should consider requiring customers and clients to sign a waiver of liability and indemnity agreement. Read More

Paycheck Protection Program (PPP) Loan Forgiveness: What We Know So Far (As of May 7, 2020)

By Coronavirus, Labor and Employment

While we all wait for the U.S. Small Business Administration (SBA) to release its Interim Final Rule providing specific guidance and instructions regarding PPP loan forgiveness, which was originally due to be released April 26, 2020, here is what we know so far.  PPP loan forgiveness is based on the borrower’s eligible payroll costs and eligible non-payroll costs “incurred and paid” during the 8-week period measured from when the PPP loan funds were first disbursed.  This 8-week period is referred to as the “Covered Period.”  Loan forgiveness will be determined by looking at the loan amount received by the borrower and the eligible costs incurred and payments made by the borrower within the Covered Period. Read More

The U.S.-Canada Border is Closed to “Nonessential” Travel. Is My Travel Essential?

By Coronavirus, Immigration

On March 18, 2020, the U.S. and Canadian governments announced the closure of the international border to nonessential travel due to the COVID-19 pandemic.  An announcement of the border closure was published in the Federal Register on March 24, 2020, in which the Department of Homeland Security noted that, consistent with the President’s declaration of a national emergency, the spread of COVID-19 within the U.S. posed a “specific threat to human life or national interests,” justifying the travel restrictions under 19 U.S.C. § 1318.  The initial closure was scheduled to expire on April 20, 2020, but was extended for an additional month, or until 11:59 PM EDT on May 20, 2020.  The notice extending the travel restrictions was published in the Federal Register on April 22, 2020. Read More

Coping with the Coronavirus Crisis: Are Construction Project Delays Excused?

By Construction, Coronavirus

The current health crisis has impacted nearly every aspect of our economy.   And while certain construction activities have been deemed to be “essential services” in Maine, many projects have been halted or significantly delayed.  Government restrictions aimed at slowing the spread of the Coronavirus have derailed supply chains, limited available workforces, and prevented necessary inspections from occurring.  In addition, social distancing and health and safety requirements on the jobsite have further slowed work.  In light of these unprecedented challenges, many contractors are left to wonder if these delays can be excused. Read More

Reopening the State and Your Business – A Resource Guide

By Business, Coronavirus

UPDATED MAY 22, 2020

When and how you may reopen your business after the COVID-19 shutdown is a question that initially will be answered by federal and State government, and then by individual business owners and managers.  For example, Maine Governor Janet Mills has set out a four-stage program for when Maine businesses may reopen with specific checklists for each business to follow, but whether to reopen on that schedule or later is up to each business owner or manager. Read More

The Small Business Exemption Under the Families First Coronavirus Relief Act

By Coronavirus, Labor and Employment

When the Families First Coronavirus Response Act (FFCRA) was passed, it contained a provision allowing the Secretary of Labor to issue regulations providing an exemption from the Act’s paid leave requirements for businesses with fewer than 50 employees.  On April 6, the USDOL published a temporary rule regarding Paid Leave Under the Families First Coronavirus Response Act containing such a small business exemption.  Section 826.40(b) of the temporary rule describes the small business exemption issued pursuant to the Secretary’s regulatory authority to exempt small private businesses from having to provide an employee with paid sick leave under the Emergency Paid Sick Leave Act (EPSLA) and expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA). Read More

COVID-19: A Time to Plan

By Coronavirus, Maine Taxes, Wills & Estate Planning

COVID-19 and the unprecedented efforts being taken to prevent its spread have turned the world on its head and brought into focus the importance of preparedness and planning in all aspects of life.

For governments, being prepared means having effective response plans in place to combat the health and economic damage caused to the people they serve.  For businesses, being prepared is having established plans to allow them to adapt to new circumstances and to continue operations.

For individuals, what first comes to mind in being prepared and planning is probably having enough savings tucked away to get through a tough time, or having enough food and supplies stored for their families.  What often gets over looked, even in the best of times, is planning for you and your family’s future in the event of a serious illness, or even death, of a loved one. Read More

Preserving Your Lien Rights: Be Sure to Secure Your Mechanics’ Lien Rights During the Coronavirus Crisis

By Construction, Coronavirus

The spread of COVID-19 in recent weeks is likely to impact construction projects across the state.  While the State of Maine and local governments have deemed many construction activities essential, payments to contractors, subcontractors, and suppliers are likely to slow due to unprecedented economic uncertainty.  As a result, contractors, subcontractors, and suppliers should take steps to protect their payment rights. Read More

Coronavirus Aid, Relief, and Economic Security Act (CARES Act) – Summary of Key Provisions for Businesses and Workers

By Coronavirus, Labor and Employment

On Friday, March 27, 2020, the President signed into law the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), a federal stimulus package aimed at providing relief to American individuals and businesses during an unprecedented shutdown of much of the American economy.

Through tax credits, emergency grants, forgivable loans, and loan forgiveness, the CARES Act is designed to provide American businesses with the cash flow and debt relief to retain current employees, rehire employees laid off or furloughed, and to generally weather this severe economic downturn. Read More

Impact Of COVID-19 Orders On New Hampshire Contractors: Is Construction an “Essential” Service?

By Construction, Coronavirus

In response to the ongoing COVID-19 pandemic, the State of New Hampshire has issued various emergency orders aimed at reducing the spread of the Coronavirus.  For example, on March 26, 2020, the Office of the Governor signed Emergency Order #17 Pursuant to Executive Order 2020-04, which substantially limits the activities of “non-essential” services state-wide through May 4, 2020. Read More

Update on the Families First Coronavirus Response Act

By Coronavirus, Labor and Employment

On March 18, 2020, Congress passed, and the President signed, a revised version of The Families First Coronavirus Response Act (the Act) that was first passed out of the House on March 14.  The Act requires employers with fewer than 500 employees to provide COVID-19-related paid sick and family leave to eligible employees.  Significant changes from the original House version that we reported on are noted by underline, below.  The Act will take effect within 15 days (April 2, 2020). Read More

USDOL Publishes Families First Coronavirus Response Act Leave Poster

By Coronavirus, Labor and Employment

The Families First Coronavirus Response Act (FFCRA) requires that employers post a notice advising employees of their rights under the new law.  The United States Department of Labor has now published the poster that employers are required to post regarding the new emergency paid sick leave and family medical leave requirements.  A copy of the poster can be found here.

The DOL explains that employers can satisfy the posting requirement for employees who are working at home by emailing or mailing the notice to employees. The DOL FAQ states:

  • Where do I post this notice? Since most of my workforce is teleworking, where do I electronically “post” this notice?  Each covered employer must post a notice of the Families First Coronavirus Response Act (FFCRA) requirements in a conspicuous place on its premises.  An employer may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.

Please contact Bill Sheils or Dawn Harmon if you have any questions.

Impact Of COVID-19 Orders On Maine Contractors: Is Construction an “Essential” Business?”

By Construction, Coronavirus

In response to the ongoing COVID-19 pandemic, the State of Maine and local governments have issued emergency orders aimed at combating the transmission of the Coronavirus in our communities.  For example, on March 24, 2020, the Office of the Governor issued An Order Regarding Essential Businesses and Operations, substantially limiting the activities of “non-essential” businesses and operations state-wide.  On that same day, the City of Portland issued a Proclamation Declaring Continued State of Emergency and Requirement to Stay at Home, also limiting the activities of non-essential businesses and operations within the City of Portland.  Central to both orders is the requirement that all non-essential businesses and operations cease activities that are public facing, and essentially close their physical workspaces and facilities. Read More

Employment Alert: Maine Legislature Passes COVID-19 Legislation to Aid Employees

By Coronavirus, Labor and Employment

Yesterday evening, March 17, 2020, the Maine Legislature passed Legislative Document No. 2167, “An Act to Implement Provisions Necessary to the Health, Welfare and Safety of the Citizens of Maine in Response to the COVID-19 Public Health Emergency” as emergency legislation to take effect immediately.  Included in the Act is a provision that makes employees who are temporarily laid off due to the COVID-19 crisis, or who are sick or quarantined or caring for a family member as a result of COVID-19, eligible for unemployment benefits.  There is no waiting period, and there will be no charge against the employer’s experience rating record.   If you are in the unfortunate circumstance of having to temporarily cease operations during this public health emergency, the State of Maine has provided a safety net for your employees.   Employees should be advised of this emergency unemployment benefit if you need to suspend operations or if an employee is quarantined or caring for a sick family member as a result of COVID-19. Read More

COVID-19: Legal and Practical Guidance for Your Business

By Coronavirus

Perkins Thompson attorneys have prepared the following comprehensive presentation offering legal and practical guidance for your business or non-profit in light of the COVID-19 pandemic:

COVID-19 Legal and Practical Guidance for Your Business (.pdf download)

For assistance with issues you or your business may be facing, please contact our office at (207) 774-2635.  Attorneys and staff are currently working remotely and are available to assist.

User Experience (UX) Design Agreements: 4 Essential Clauses to Include

By Intellectual Property, Software & Startups

User Experience (UX) design is a bedrock part of software and website development.  It includes the study and optimization of the user’s experience – the totality of the ways in which humans interact with and experience products.  (Definitions of UX vary; in the classic definition by designer Don Norman, it includes a person’s interaction with not just a product but the company that provides it as well).  Software companies employ UX designers in a range of ways including market research, the development of product business requirements, wireframing, prototype design, and watching behind two-way mirrors as testers struggle to navigate interfaces. Read More

U.S.-Mexico-Canada Agreement (“USMCA”) Signed Into Law

By Immigration

President Trump signed the USMCA into law on Wednesday, January 29, 2020, completing the process of U.S. ratification of the agreement and moving it one step closer to replacing NAFTA. With Mexico already having ratified the USMCA, Canada is the only signatory country whose legislature has yet to act. It is expected that Canadian ratification of the USMCA will be completed in Spring 2020, but with the liberal party no longer holding a majority in the House of Commons, Canadian ratification of the USMCA will require bipartisan support, which may delay implementation of the new treaty. Read More

A Hiring Checklist for U.S. Tech Companies

By Labor and Employment, Software & Startups

Hiring employees presents unique challenges for tech companies that do not confront other American businesses. In our experience as outside counsel to tech companies, legal mis-steps typically result from oversight rather than a deliberate intention to flout the law. The checklist below is a structured guide to avoiding these common pitfalls in the hiring process. It applies to Software-as-a-Service providers, custom software developers, mobile app developers, I.T. consulting firms and other tech employers. Read More

USDOL Issues Final Rule On New Minimum Salary Threshold For Executive, Administrative, and Professional Exemption To Overtime Rule

By Labor and Employment

Back in March, we reported that the U.S. Department of Labor (USDOL) had released proposed regulations adjusting the salary level required for the executive, administrative, and professional employee (EAP), or so-called “white-collar” exemptions from the FLSA’s overtime pay requirements. The USDOL has now issued its Final Rule, which is set to take effect on January 1, 2020. Read More

Maine’s Double Payment Defense: What Subcontractors Need to Know

By Construction

When a person provides labor, material, or services to a residential construction project without a contract with the owner (e.g., subcontractors or suppliers), Maine’s mechanic’s lien law provides a “double payment” defense for the homeowner.  Under Maine law, most residential subcontractor and supplier liens can only be enforced to the extent that there is a “balance due” for the labor, materials, and/or services covered by the lien to the person with whom the owner has a contract with (e.g., general contractor).  In other words, if a homeowner has paid his or her general contractor for the work that is the basis of the lien, the lien will not be enforceable.  The homeowner is protected from having to pay for the subcontractor’s or supplier’s work twice.  A subcontractor or supplier lien will only be enforceable to the extent that the homeowner has not paid for the work. Read More

129th Maine Legislature Update

By Energy, Hospitality, Labor and Employment, Land Use & Municipal Law, Municipal

The First Regular Session of the 129th Maine Legislature has adjourned, leaving a number of new laws for us all to understand and comply with.  Listed below by topic area are what we believe are some of the most important new laws for our clients and readers to know about.  We have provided summaries to highlight the major effects of these new laws, but as always, there are details.  Please let us know if you are interested in how these new laws might affect you or your business, institution, or governmental body.

The new laws listed below become effective on September 19, 2019 except as otherwise specified. 

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Maine Places Limits on Noncompete Agreements and Prohibits No-Hire/No-Poach Agreements Between Employers

By Labor and Employment, Software & Startups

Governor Mills signed into law “An Act to Promote Keeping Workers in Maine” (26 M.R.S. §§599-A and 599-B), set to become effective September 19, 2019, placing significant limitations on the use of employee noncompete agreements and prohibiting agreements among employers not to solicit or hire each other’s employees. In passing this legislation, Maine joins its New England neighbors, New Hampshire and Massachusetts, in restricting the use and enforceability of noncompete agreements and joins the national trend in striking down so-called “no poaching” agreements. Read More

What’s My Defense?  New Hampshire Statute Provides List of Contractor Defenses to Defect Claims

By Construction

As we discussed in a prior blog post, New Hampshire’s residential construction statute provides contractors with a statutory right to notice of claimed defects prior to being sued.  This statute, however, also provides contractors with another benefit that is often overlooked.  It contains an extensive list of things that residential contractors will not be liable for.  Specifically, NH RSA 359-G provides that residential contractors are not liable for damages caused by: Read More

Contractors’ Right to Notice: New Hampshire’s Residential Construction Statute Requires Homeowners to Provide Notice of Defects Prior to Suing

By Construction

Under New Hampshire law, homeowners are generally required to provide notice of any claimed construction defects prior to filing a lawsuit against their residential contractor.  The purpose of this law is to “encourage the out-of-court resolution of disputes between homeowners and contractors relative to residential construction defects.” N.H. RSA § 359-G. Assuming the contractor has preserved this right to notice (by including required language in its contract), homeowners must provide at least 60 days’ notice of any claimed defects prior to filing a lawsuit. Read More

eBay Fumbles Breach Notification

By Data Security
Recently, eBay discovered that hackers utilized the credentials of three of its corporate employees to gain access to user’s non-financial personal information. Users’ encrypted passwords, names, addresses, phone numbers and...
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