By Miles Imwalle, Katharine Van Dusen, Charmaine Yu, and Sarah Peterson.

Senate Bill 35 (SB 35) was one of the most promising bills to come out of a package of housing-related laws enacted by the California legislature in 2017. SB 35 authorized a potentially powerful procedure for reviewing proposed housing developments, requiring cities to deliver streamlined approvals of developments that are consistent with local zoning and design standards, and eliminating the arduous discretionary approval process that has long-stymied such developments in California. But until recently, SB 35 was untested in court. Now, two recent trial court decisions have affirmed that SB 35 is indeed a powerful tool: not only must projects be approved within three to six months, but the approvals are likely to withstand later legal challenges.

The more recent decision involved a challenge to the first large-scale project approved through SB 35. In 2018, the City of Cupertino approved a major redevelopment of the Vallco Fashion Mall under SB 35. The Vallco project proposed to add 2,402 units of housing to Cupertino, including 1,201 affordable units. The City reviewed the project and determined it was consistent with local standards, and the project was therefore approved under SB 35. In fact, because the project satisfied the local standards and otherwise met SB 35 requirements, the City had no discretion to reject the project application.

In a closely watched and hotly contested proceeding, a group of Cupertino residents known as Friends of Better Cupertino petitioned to overturn the approval. The lawsuit took over a year to resolve—more than triple the amount of time it took for Cupertino to approve the project in the first instance. The lawsuit challenged nearly every aspect of the approval, from Cupertino’s method of reviewing the application to its determinations that the project met the statutory criteria.

On May 6, 2020, the Court rejected each of petitioner’s arguments in a detailed, carefully reasoned 62-page decision (available here). Crucially for project applicants, the Court at the outset rejected the foundational premise of petitioner’s lawsuit, namely, that Cupertino had a legal obligation to deny the project application if it failed to meet the statutory criteria for approval. The Court held that municipalities are under no ministerial duty to reject any project submitted under SB 35: “nothing in [SB 35] requires an agency to enforce the eligibility criteria or its own local standards by affirmatively rejecting a noncompliant project.” Because there is no such duty, project opponents cannot tie up approved projects in years of litigation.

The Court’s decision also made clear that a city’s staff is fully authorized to review and approve an SB 35 project without involvement from the city council or the planning commission, and without any public hearing. While SB 35 authorizes limited public oversight, as long as the oversight does not chill or inhibit project approval, SB 35 “neither mandates a public hearing nor requires a decision to be made by a local planning commission.” Instead, SB 35 was enacted to “eliminate the involvement of elected officials in the process to make review ministerial rather than discretionary.” In rejecting petitioner’s argument that a public hearing was required, the Court recognized a key goal of SB 35: “to drastically reduce the politicization of the planning process and the use of tactics like those Petitioners resort to here.” The staff-level review and approval of Vallco’s SB 35 project was appropriate and fully consistent with the goals of SB 35.

While the Court denied Friends of Better Cupertino’s petition as procedurally defective because Cupertino would have had no duty to deny a non-compliant project, the Court also took pains to emphasize that the City’s approval of the project was, in any case, appropriate as a factual matter. The Vallco project actually satisfies each of the objective standards in SB 35, and the City was correct to approve it. As the Department of Housing and Community Development—the statewide agency in charge of implementing SB 35—has recognized, “[a]pproval of projects such as the Vallco project fulfill this legislative intent.”

The Vallco decision follows on another decision that gave proper effect to the SB 35 statute. That decision involved the denial by the City of Los Altos of a 15-unit project submitted under SB 35. In the decision, issued on April 27, 2020 (available here), the Court ruled that the City improperly denied the application because it had not adequately identified inconsistencies with specific objective standards. While the City had issued a denial letter claiming that the project included too few parking spaces and did not have “adequate” access, the Court faulted the letter for being vague and failing to identify any objective standards that the project violated. Because the City failed to issue a valid inconsistency determination within the statutory deadline, the Court held that the project “was deemed to comply with objective standards as a matter of law,” and directed the City to approve the project.

These two decisions fulfill SB 35’s promise as a powerful tool to obtain approvals of housing developments throughout the Bay Area and the State. The SB 35 procedure effectively limits the ability of local residents and politicians to block qualified housing developments from being approved in the first instance, and also limits their ability to use the courts to tie up projects that comply with SB 35’s criteria.

 

Coblentz Patch Duffy & Bass LLP attorneys assisted the applicant, Vallco Property Owner LLC, and its affiliate, Sand Hill Property Company, during all stages of entitlements and in the Friends of Better Cupertino litigation.

Brand owners now have greater incentive for pursuing infringers of their trademarks under a recent Supreme Court decision. Last week, the high court resolved a dispute between the circuits, ruling that trademark owners may recover the profits earned from the sale of infringing goods even if the infringer did not act willfully.

Writing for a unanimous Court in Romag Fasteners, Inc. v. Fossil, Inc., Justice Gorsuch conducted a statutory analysis. The Lanham Act expressly requires willful infringement to obtain certain forms of damages, but not to obtain an infringer’s profits. Congress could have imposed that requirement, but chose not to do so – so neither should the courts. This decision thus clears the way for an award of infringer’s profits even in cases of “innocent infringement.”

High Risk, High Reward

Following Romag Fasteners, accused infringers will likely see an uptick in lawsuits seeking disgorgement of profits. The expanded availability of infringer’s profits bolsters the financial case for pursuing trademark infringers. Previously, plaintiffs seeking damages in some circuits had to prove that they lost sales to an infringer – a tricky task in a crowded marketplace. Most successful infringers have earned something for their efforts, though, all of which is now at risk. Even if profits are not awarded in every case, the chance that they will be is a significant benefit to plaintiffs. Brand owners should search and clear trademarks carefully.

The decision is also likely to increase deterrence for so-called “short-term” infringers. Some infringers are not deterred by the risk that their future sales will be banned – they simply roll the dice, make money while they can, and move on to greener pastures when challenged. Romag Fasteners modifies the calculus for them. Real money is now at stake.

The Supreme Court’s latest intellectual property decision continues the trend towards dismantling limitations to damages rooted in precedent but not statute. Careful monitoring of trademark use in the market – for both trademark owners and potential infringers – is now more important than ever.

For further information on the topic or for general IP assistance, contact Coblentz Intellectual Property attorneys Karen Frank at kfrank@coblentzlaw.com, Thomas Harvey at tharvey@coblentzlaw.com, or Christopher Wiener at cwiener@coblentzlaw.com.

In the current environment, it is tempting to let data privacy issues take a back seat to more urgent issues of health and safety.  But businesses cannot afford to forget about data privacy compliance, especially in light of the upcoming July 1, 2020 enforcement date of the California Consumer Privacy Act (“CCPA”), which Attorney General Xavier Becerra has said will not be delayed due to COVID-19 issues.  Businesses must continue to consider and address privacy compliance issues now and over the next few critical months.

In this article, we discuss how the CCPA impacts franchisee-franchisor relationships, franchise obligations under the CCPA, and potential consequences of non-compliance.

CCPA Penalties: Good News, Bad News, And Brand Reputation

The good news for franchisees and franchisors (and all businesses) is that only the Attorney General may bring a lawsuit against a business for most CCPA violations.  The exception to this, of course, is that the CCPA provides a private right of action for consumers affected by a data breach.  However, for most CCPA violations, there is no private cause of action and a consumer cannot commence a lawsuit against your company.

The bad news is that even under Attorney General actions, penalties of non-compliance with CCPA are steep.  Intentional violations carry a $7500 price tag per violation and unintentional violations are subject to penalties of $2500 per violation. And those violations are calculated on a per consumer basis.  When considered in perspective that California’s population exceeds 39 million, even unintentional violations can quickly add up to hundreds of millions of dollars in penalties. Both franchisees and franchisors (under the theory of vicarious liability) may be directly liable for these penalties.

In addition to monetary penalties, as more Americans become cognizant of and value their privacy, any lack of transparency or privacy violations can lead to bad PR, tarnishing the brand image and goodwill associated with the brand.  The franchise system depends on a strong brand. Once the brand reputation takes a hit, it is hard to overcome the negative connotations without spending significant resources. Both the franchisor, who has developed the strength of the brand, and the franchisee who is operating under the name of the brand, have much to lose as customers will not distinguish between franchisor-franchisees when punishing a brand.

Thus, the cost-benefit analysis weighs in favor of taking the CCPA seriously and evaluating if compliance is required at the franchisor and franchisee level.

Evaluating Whether CCPA Compliance is Required

Many franchisees and franchisors may not think they are subject to the CCPA.  Franchisors that have no presence and do no direct business in California may believe that they are exempt from complying with the CCPA.  Alternatively, franchisees may believe that their franchisor’s compliance with privacy obligations is sufficient to render them compliant.  While this may seem to make sense where personal information is generally collected through a corporate website or point of sale system operated by the franchisor, the information is processed by the franchisor and generally used by the franchisor, franchisees are not automatically absolved of having to comply with the CCPA by virtue of their franchise relationships.  In fact, some franchisors in their privacy policies explicitly disclaim any liability arising from their franchisee’s collection and use of personal information.

In sum, both franchisors and franchisees must independently evaluate their collection and use of personal information, their corporate relationships, and branding to analyze CCPA compliance.

A franchisor or franchisee must independently comply with the CCPA if they are either: 1) a business as defined in the CCPA or 2) an “entity that controls or is controlled by a business” and “shares common branding with the business.”

Are You A Business?

A “business” under the CCPA is defined as any legal entity, operated for profit, that (1) collects the personal information of consumers and determines the purposes and means of processing the consumer information, (2) does business in CA, and (3) meets any of the following thresholds: a) has annual gross revenues exceeding twenty-five million ($25,000,000); b) buys, receives, sells or shares for commercial purposes the personal information of 50,000 or more consumers, households, or devices; or c) derives 50% or more of its annual revenues from selling consumers’ information.

If a franchisor or franchisee meets any of the above thresholds on its own, it is a business under the CCPA and must independently comply with the statute.  In such a circumstance where a franchisee independently meets these requirements, it is not sufficient that a franchisor provides a privacy policy or certain privacy notices; the franchisee is required to maintain their own privacy policies and notices and comply with other CCPA requirements.

Do You Satisfy the Business Branding and Control Test?

If a franchisor/franchisee does not independently meet the definition of a business, the inquiry then shifts to whether it is an “entity that controls or is controlled by a business” and “shares common branding with the business.”  To make this determination, a franchisee should consider: 1) the franchisor’s status as a business, 2) the franchisor’s control over the franchisee, and 3) shared common branding.  Similarly, a franchisor should consider: 1) its franchisees’ status as a business, 2) its control over its franchisees, and 3) shared common branding with its franchisees.

1. Franchisor/Franchisee Status As A “Business”

Unless your franchise is part of an extremely limited business model, most franchisors will likely meet the twenty-five million revenue threshold and satisfy the above definition of a “business” under CCPA if they are doing any business in California and collecting any personal information of consumers. If the franchisor is a business, the franchisee should next inquire regarding the remaining two factors of control and branding for a franchisee.

While many franchisors who are not directly subject to the CCPA may not need to worry about their franchisees hitting the $25 million revenue trigger for CCPA compliance, it is possible that franchisees may, through website visits or other means, collect information from over 50,000 California consumers, households, or devices per year. If a franchisee is a “business” under the CCPA due to its collection of information in this regard, the franchisor must then look to control and branding to determine its own potential compliance obligations.

2. Control

“Control” or “controlled” under the CCPA means, “ownership of, the power to vote, more than 50% of the outstanding shares of any class of voting security of a business; control in any manner over the election of a majority of directors, or individuals exercising similar functions; or the power to exercise a controlling influence over the management of a company.”

Certain aspects of the definition of “control” are relatively clear to evaluate.  For example, ownership is apparent based on whether a franchisor jointly owns a franchise with a franchisee. Similarly, whether or not the franchisor has the power to vote can be determined from corporate legal documents.

There is more uncertainty regarding the phrase “the power to exercise a controlling influence over the management.”  As written i.e. – the power to exercise – could mean that a franchisor does not have to actually exercise any controlling influence over management, it must only be vested with the power to exercise such influence. There is much ambiguity as to what “controlling influence over the management” means.

Generally, franchisors exert considerable control over their franchisees. For example, standard franchise agreements include provisions defining the franchisee’s sale territory and location, services offered by the franchisee, required training for franchisee employees, strict quality control requirements over the products and services offered by the franchisee, design and décor, and limitations on use of franchisor branding and intellectual property.  Franchise agreements often include non-compete clauses restricting the franchisee from competing with the franchisor’s business.  Therefore, one can argue that a franchisor has broad control over the management of a franchise and CCPA compliance is warranted by any franchisee under the control of a franchisor that is a business.  The practical consequences of such an interpretation of “control” is that any franchise, regardless of its location and size, if collecting California consumer data, is required to comply with the CCPA.  So a hotel-franchisee of an international hotel chain in New York City, NY must comply with the CCPA regardless of the number of Californians visiting the franchisee hotel.

On the other hand, one can argue that the franchisor’s control is only exerted initially when the franchise is set up and wanes over time to quality control only.  The location, territory, products, and services offered are all one-time decisions.  The franchisee maintains control over day-to-day activities such as installing equipment, hiring and managing employees, determining wages, all of which the franchisor has no control over.  Thus, there is no ongoing “controlling influence” on the franchisee operations and no CCPA compliance is warranted.  The concern over this interpretation of “control” is that a franchisee may never have to comply with the CCPA.  This would render the language in the statute pertaining to entities that control or are controlled by a business and share common must comply with the CCPA superfluous. It would also contradict the general spirit of the CCPA that aims to provide transparency and clarity in the collection and use of personal information of California consumers.  For example consider a burger franchise in Roseville, CA that collects personal information of CA residents and shares it with the franchisor corporation.  The franchisor then uses this information to engage in targeted advertising, sells this information to third parties, and shares the data with its affiliates and partners, etc.  The CA consumer in Roseville had no notice or transparency when visiting the franchise about how his/her personal information would be used, sold, or shared by the franchisor. This is exactly the situation the CCPA seeks to remedy.

The CCPA is unchartered territory so ultimately what constitutes “control,” what actions can be categorized as “controlling influence,” and what is “management” are questions that will be resolved by forthcoming enforcement actions.  Each franchise circumstance is different and, for now, franchisors and franchisees should evaluate their data collection and use policies and assess “controlling influence” exerted by franchisors over franchisees while making a good faith determination of whether or not to comply with CCPA.

3. Common Branding

Common branding means a “shared name, servicemark, or trademark.”  The essence of a franchisor-franchisee relationship is to enable the franchisee to use the franchisor’s trademark, name, processes, and know-how.  The franchisee seeks to benefit from the franchisor’s brand recognition and reputation in the market. As a result, franchisees will almost always share the name and mark of the franchisor and satisfy the common branding requirement.

Because the CCPA applies to companies that control or are controlled by a business AND share common branding with a business if these two elements are met, and either the franchisor or the franchisee is deemed a “business,” both entities are likely subject to CCPA.

Conclusion

The decision of whether or not a given franchisor or franchisee must comply with CCPA and how it can achieve this goal should be evaluated on a case-by-case basis.  Depending on the situation, resourceful legal solutions may be successful in navigating CCPA compliances in light of the complexities of franchise relationships.  For example, in unique situations, it may be possible for a franchisee to enter into a “service provider” agreement with the franchisor thereby shifting the CCPA obligations on the franchisor. Alternatively, franchisors and franchisees may be able to change their corporate relationships, operations or management functions to avoid getting pulled into CCPA liability when they would not otherwise be covered by the CCPA.

If you are a franchisor, franchisee, parent, subsidiary or other business and are evaluating whether or not you should comply with CCPA or how to comply, contact Cybersecurity and Data Privacy attorney Scott Hall (shall@coblentzlaw.com) to determine further obligations. You can also review additional CCPA articles and resources in our CCPA Resource Center.

With the COVID-19 pandemic threatening people’s health and wreaking economic havoc in California and worldwide, parties to commercial contracts are asking whether force majeure and the closely related doctrines of commercial impracticability and frustration of purpose, can avoid or suspend their obligations in a contract.

As just one example, commercial and retail tenants have sought relief from their obligation to pay rent, given that many retail establishments like restaurants have been forced to close or have seen revenues plummet. Beyond leases, the COVID-19 crisis may affect performance of obligations under other commercial contracts (like loans or services or supply contracts), because cash flow and supply chains are disrupted, employees cannot come to a workplace, or government orders have required business closures.

Contracts Containing a Force Majeure Clause

As a first step, read through the contract and check whether it contains a force majeure clause. If it does, review its language closely. Force majeure generally requires two conditions to excuse performance: (a) the occurrence of unforeseen, extraordinary circumstances that create a risk that neither party has agreed to bear, and (b) the extraordinary circumstances were beyond the control of the party seeking to suspend or avoid performance. Contractual force majeure provisions typically list a series of events that the parties have agreed would excuse performance, including, as examples: a pandemic, epidemic, public health emergency, government action, or, more generally acts of God or events beyond the control of either party. In addition to listing particular triggering events, force majeure clauses typically state that performance is suspended for the duration of the event, and, in some cases, for a reasonable period beyond the event. Some force majeure provisions may require that the party invoking it provide notice to the other party, including advising of the expected duration that performance will be suspended.

Contracts Without Force Majeure Provisions

Even where a contract does not contain a force majeure provision, California law may excuse performance of a contract when extraordinary events not within the contemplation of the contracting parties, and beyond their control, make performance impossible or commercially impracticable. See, e.g., City of Vernon v. City of Los Angeles (1955) 45 Cal.2d 710. California Civil Code Section 1511 and the California Commercial Code Section 2615(a) reiterate these common law principles: The failure to perform or a delay in performance is excused when it is rendered impossible or impracticable by the occurrence or nonoccurrence of an event not within the contemplation of the parties and beyond their control, unless one of the parties explicitly agreed in the contract to assume the risk of such event.

Although force majeure and commercial impracticability are potentially viable defenses to performance of a contract, they are generally reserved for extraordinary situations. The current pandemic and government shelter-in-place measures may indeed be truly extraordinary, at least at the moment, for certain businesses and certain contracts entered into before the possibility of a COVID-19 event was reasonably anticipated. As time passes and the pandemic, government action, and government aid develop, however, the situation should change and become less exceptional.

Assuming that the current pandemic and government action would trigger a force majeure defense for contracts entered into, for example, before February 2020, the party seeking to avoid performance must still prove causation and is required to reasonably mitigate damages. Did the party invoking force majeure have other business problems before the pandemic that are causing or substantially contributing to the inability to perform? Has the party undertaken reasonable, diligent measures to mitigate the effect of the COVID-19 pandemic, such as redirecting its business efforts and minimizing costs? Moreover, why should the counter-party to the contract be forced to bear the risk of the pandemic?

The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) signed into law on March 27, 2020 and other state enactments that may follow should also offer some contracting parties with sufficient relief and mitigation such that continued, or renewed, performance with pre-existing contracts may be required. The CARES Act provides hundreds of billions of dollars of funding available for Small Business Association loans, which will provide “forgiveness” (no repayment required) for amounts the businesses spend on interest payments for mortgages, payroll, utilities, and rent for an eight-week period after a loan originates. Government aid may enable businesses to mitigate their damages sufficiently that continued performance with contracts is required.

The full text of the CARES Act is available here and a thorough summary of both business and employment benefits under the act can be found here.

Issues for Consideration

• Review the contract for a force majeure provision and the particular contract language. Where the contract contains a specific provision, its language and the manner in which it allocates risks between the parties should take precedence over California’s common law and statutory law.
• If you are seeking to suspend or avoid performance, give the other party written notice, regardless of whether the contract requires it. If you are the counter-party seeking to require performance and you receive notice, ask reasonable questions – why in particular does COVID-19 justify suspending performance for this business, for how long, and what accommodations in lieu of suspending performance altogether could you (or the other party) propose?
• The party attempting to suspend or avoid performance needs to seek to mitigate damages. Likewise, the party seeking to enforce the contract should be flexible, where possible, both as a good business practice to further the relationship and to show that you were flexible or even proposed mitigation measures. Ask what you can do to facilitate performance, such as agreeing to delay or defer a payment for a certain period of time, or, possibly to waive or diminish interest payments or a late fee for a particular period. If litigation later ensues, a party’s flexibility should help to show that the party seeking to avoid performance could have found a way to perform with reasonable proposed accommodations or mitigation measures.

Aggressive litigants may also seek to take tactical advantage of the COVID-19 pandemic to avoid contracts they do not like. If you are faced with a baseless or overreaching claim that the COVID-19 pandemic has made contractual performance impossible, you may need to push back forcefully. And before you seek to take tactical advantage of the pandemic, keep in mind that courts are unlikely to look with sympathy on parties who try to exploit a worldwide health and financial crisis. Force majeure provisions should only be invoked where appropriate.

Any decision about whether to invoke force majeure or how to respond to a counter-party’s invocation of it is fact-specific. We expect to provide future updates on issues in specific contexts. For example, how will lenders and debtors address loan defaults if the pandemic triggers a long-term recession? How will commercial and residential landlords deal with sky-rocketing numbers of tenants who may suddenly be unable to pay rent?

For further information on how the COVID-19 pandemic might impact your contracts and your business, contact Howard Slavitt at hslavitt@coblentzlaw.com.

On March 27, 2020, Congress approved and the President signed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act, H.R. 748). In addition to the Families First Coronavirus Response Act (FFCRA) upon which we previously reported on, the CARES Act provides for approximately $2 trillion in assistance to individuals and businesses, among other things. For individuals, relief set out in the bill includes direct payments of $1,200 to millions of Americans and strengthened unemployment benefits. For businesses, the bill allocates hundreds of billions of dollars in loans and grants for struggling businesses, particularly small businesses, and expands the availability of pre-existing loan programs to more businesses. The bill includes: Expanded Unemployment Compensation for Workers. The CARES Act sets out a multipronged approach to assist state-based unemployment programs. The CARES Act includes (i) a $600 supplement to state-paid unemployment compensation for those who already qualify, (ii) a pandemic unemployment assistance program which matches the normal state unemployment rate plus $600 for unemployed workers who would not normally be eligible, and (iii) an extension of unemployment compensation by 13 weeks beyond the states’ existing eligibility periods. The Act further provides federal funding to states to cover the cost of the first week of unemployment benefits if states elect to waive typical one-week waiting periods (which California has done). Pandemic Unemployment Assistance – Section 2102 Section 2102 creates the temporary Pandemic Unemployment Assistance program effective January 27, 2020, to remain in effect until December 31, 2020, which covers individuals who would not otherwise be eligible for unemployment insurance and benefits. Individuals covered by the CARES Act include the self-employed, independent contractors, gig workers, part-time employment seekers, those who lack sufficient work history, or those who have exhausted their unemployment benefits under existing schemes – provided they are able to self-certify that they are unemployed, partially unemployed, or unavailable due to the following reasons: They have been diagnosed with COVID-19 or are experiencing symptoms of COVID-19 that require a medical diagnosis. A member of their household has been diagnosed with COVID-19. They are providing care for a family member or member of their household who has been diagnosed with COVID-19. A member of their household for whom they have primary caregiving responsibility is unable to attend school or another facility that has been closed as a direct result of the COVID-19 public health emergency and because of this closure, they are unable to work. They are unable to work because of a quarantine imposed as a result of the COVID-19 public health emergency. They are unable to work because they have been advised to self-quarantine by a health care provider. They were scheduled to start a job but are unable to do so as a result of the COVID-19 public health emergency. They have become the breadwinner or major supporter for a household because the breadwinner in the household has died as a direct result of COVID-19. They quit their job as a direct result of COVID-19. Their place of employment is closed as a direct result of the COVID-19 public health emergency. (Note: individuals who are able to telework with pay or who have received paid sick leave or other paid leave benefits are ineligible to receive assistance under the Program.)Covered individuals may receive assistance under the Program for a maximum of 39 weeks, including any weeks for which the covered individual received regular unemployment benefits provided under Federal or State law. The amount of benefit provided to a covered individual under the Program is equal to the amount of unemployment benefit the covered individual would otherwise be entitled to under federal or state law plus an additional amount referred to as Federal Pandemic Unemployment Compensation in the amount of $600 per week. The Program removes any waiting periods established by state unemployment laws. Emergency Increase in Unemployment Compensation Benefits – Section 2104 Section 2104 provides for an additional $600 per week payment beyond what individuals receive under state unemployment laws, referred to as “Federal Pandemic Unemployment Compensation,” to recipients of unemployment insurance or Pandemic Unemployment Assistance for a period of up to four months. Pandemic Emergency Unemployment Compensation – Section 2107 Section 2107 provides an additional 13 weeks of unemployment compensation, through December 31, 2020, to all individuals who otherwise would be ineligible for such compensation because they have exhausted all rights to regular unemployment compensation under applicable state or federal law with respect to this benefit year, provided they (i) have no rights to regular unemployment compensation under any applicable state or federal law, (ii) are not receiving unemployment compensation under Canadian law, and (iii) are able, available and actively seeking work. The amount of unemployment compensation payable to an individual under this Section is equal to the amount of unemployment benefit the individual would otherwise be entitled to under applicable federal or state law plus the amount of Federal Pandemic Unemployment Compensation ($600). For a chart summarizing all employment benefits made available due to the pandemic under federal and California law, click HERE. Recovery Rebate for Individual Taxpayers. The CARES Act would provide a $1,200 refundable tax credit for individuals ($2,400 for joint taxpayers). Additionally, qualifying taxpayers with children will receive a flat $500 for each child. The rebate starts to phase out for single taxpayers earning $75,000 or more, for head of household taxpayers earning $112,500 or more, and joint taxpayers earning $150,000 or more. The phase out is calculated at 5% per dollar of qualified income, or $50 per $1,000 earned above the phase out threshold. For example, a single taxpayer filing as an individual (not head of household) making $85,000 annually would receive a rebate of $700 (that is, $1,200 reduced by 5% of $10,000, or $500). It phases out entirely for single taxpayers with no children who earn more than $99,000 per year, and for joint taxpayers with no children who earn more than $198,000 per year. An individual’s 2019 or 2018 tax returns will be used to calculate the rebate advanced to taxpayers, but taxpayers eligible for a larger rebate based on 2020 income will receive it in the 2020 tax season. Paycheck Protection Program – Section 1102. The bill provides aid to businesses with fewer than 500 employees and allocates approximately $350 billion through June 30, 2020 for small business loans up to $10 million through approved lenders that are fully government-guaranteed. The loan proceeds may be used to cover payroll costs, such as employee salaries, paid sick or medical leave, insurance premiums, and mortgage, rent, and utility payments incurred from February 15, 2020 through June 30, 2020. The maximum amount of a loan equals 2.5 times the average regular monthly payroll expenses, subject to a hard cap of $10 million and other certain limitations. The following businesses are considered eligible for the Paycheck Protection Program: Businesses with fewer than 500 employees. Small businesses as defined by the Small Business Administration (SBA) Size Standards at 13 C.F.R. 121.201. 501(c)(3) nonprofits, 501(c)(19) veteran’s organization, and Tribal business concern described in Section 31(b)(2)(C) of the Small Business Act with not more than 500 employees. Hotels, motels, restaurants, and franchises (NAICS Code 72) with fewer than 500 employees at each physical location. Businesses that receive financial assistance from Small Business Investment Act Companies licensed under the Small Business Investment Act of 1958. Sole proprietors and independent contractors. Eligible small businesses may also receive loan forgiveness equal to the amount spent by the borrower during an eight-week period after the origination date of the loan on payroll costs, interest payment on any mortgage incurred prior to February 15, 2020, payment of rent on any lease in force prior to February 15, 2020, and payment on any utility for which service began before February 15, 2020, with the amount of any such forgiveness reduced if the borrower subsequently reduces its employee headcount or employee compensation beneath certain established thresholds. Any amount of loan used to pay any single employee more than $100,000 will be excluded from forgiveness. Borrower and lender fees, collateral, and personal guarantee requirements all are waived. The CARES Act authorizes the Small Business Administration to issue loans with interest rates of up to 4% with a maximum maturity date of 10 years, though the regulations issued by the Treasury Department after enactment of the law set the interest rate at 1% with a maturity date of only 2 years. There is no penalty for prepayment, and loan repayments can be deferred for 6-12 months. Eligibility for loans under the Paycheck Protection Program is based on whether the business (1) was operational on February 15, 2020, and (2) had employees for whom it paid salaries and payroll taxes, or a paid independent contractor, and not with regard to repayment ability. A borrower must make a good faith certification that current economic conditions caused the borrower to request support, the loan will be used for approved uses, and the borrower is not also seeking or received an SBA 7(a) loan for the same purpose. A list of approved lenders can be found here. SBA Economic Injury Disaster Loans & Advances – Section 1110. The bill expands the types of entities eligible to receive (1) up to $2 million in direct loans from the Small Business Administration (with the actual loan amount depending on the amount of the actual injury), and (2) loan guarantees for substantial economic injury caused by the COVID-19 pandemic. Eligible borrowers under this program are those that are unable to meet their obligations as they mature or to pay their ordinary and necessary operating expenses as a result of the COVID-19 pandemic. The loan proceeds may be used for (i) working capital necessary to carry on the concern until normal operations resume, (ii) expenditures necessary to alleviate the specific economic injury, (iii) providing paid sick leave to employees, (iv) maintaining payroll, (v) meeting increased costs to obtain materials, (vi) making rent or mortgage payments, and (vii) repaying obligations that cannot be met due to revenue losses. Due to potential delays in disbursing these loans, the bill also authorizes emergency grants of up to $10,000 to eligible borrowers, available immediately. Note that borrowers receiving an Economic Injury Disaster Loan relating to the COVID-19 pandemic cannot also receive a loan under the Paycheck Protection Program. The Economic Injury Disaster Loan application can be found here. New Eligible Entities: Generally, businesses with fewer than 500 employees. Tribal businesses with fewer than 500 employees. Cooperatives with fewer than 500 employees. Employee Stock Ownership Plans with fewer than 500 employees. Individuals operating as a sole proprietor or an independent contractor during the covered period (January 31, 2020 to December 31, 2020). Other Eligible Entities: Small businesses as defined by the Small Business Administration Size Standards. Private non-profits with exemptions under sections 510(c), (d) or (e) of the Internal Revenue Code. Section 7(a) Loan Subsidies – Section 1112. The bill allocates $17 billion to the Small Business Administration to cover principal, interest, and fees on loans guaranteed by the Small Business Administration for up to six months. For a chart summarizing the loan, forgiveness and subsidy programs made available under the CARES Act click HERE. Tax Provisions. In addition to the specific provisions detailed above, the new law includes several changes to the U.S. tax laws to provide assistance for taxpayers dealing with the financial fallout from the pandemic. These include: Five-Year NOL Carryback and Suspended 80% Limitation – Section 2203 For taxable years 2018 to 2021, the 80% income limitation on net operating losses (“NOLs”) has been suspended. The bill also allows for NOLs earned in 2018, 2019, or 2020 to be carried back five taxable years. Waiver of Penalty on Early Withdrawal from Retirement Account – Section 2103 The bill removes the 10% penalty on early withdrawals from retirement accounts for any “coronavirus-related distribution.” A coronavirus-related distribution is a distribution from a retirement plan made between March 27, 2020 and December 31, 2020 to an individual (i) who has tested positive for coronavirus, (ii) whose spouse or domestic partner has been diagnosed with coronavirus, or (iii) who experiences adverse financial consequences as a result of coronavirus. Amounts withdrawn are taxable over three years, but may be recontributed without affecting retirement account caps. Eligible retirement accounts include individual retirement accounts (“IRAs”), 401ks, and other eligible plans under Section 402(c)(8)(B) of the Internal Revenue Code. Temporary Waiver of Required Minimum Distribution from Retirement Account – Section 2203 The bill waives the required minimum distribution for 2020 from 401k plans, IRAs and other eligible retirement accounts. Interest Deduction Limitation – Section 2206 The bill increases the amount of deductible business interest expenses from 30% to 50% of EBITDA for tax years beginning in 2019 and 2020. Technical Correction Regarding Deduction for Qualified Improvement Property – Section 2307 The bill includes an amendment to the 2017 Tax Cuts and Jobs Act, which reduces the depreciable life of qualified improvement property, such as leasehold improvements, from 39 years to 15 years. This amendment is retroactive to January 1, 2018, and therefore taxpayers may file amended tax returns to receive the benefits of additional and bonus depreciation. The full text of the CARES Act is available online here. This alert was authored by Coblentz Employment attorneys and Christopher Westman, with contributions from our Tax attorneys Jeffry Bernstein and Jessica Wilson. For more information or to discuss how the CARES Act impacts your company, please contact Jeffry Bernstein at jbernstein@coblentzlaw.com, or Paul Tauber at ptauber@coblentzlaw.com.