Oregon Health Authority Orders New Statewide Face Covering Guidance

As COVID-19 continues to impact our daily lives, Governor Kate Brown has authorized the Oregon Health Authority (OHA) to create new guidance on masks, face coverings and face shields (collectively referred to as “face coverings”). On August 13, 2020, masks, face shields, and face coverings became required statewide for offices and indoor public spaces and in outdoor public spaces when physical distancing is not possible.

All patrons (employees, contractors, volunteers, customers and visitors) of a business, indoor public space or outdoor public space are now required to wear a mask, face shield or face covering at all times, with the following exceptions:

  • For employees, contractors and volunteers, face coverings are not required when at or in a location where the employee, contractor or volunteer does not have a job that requires interacting with the public and at least six feet of distance can be maintained between individuals. In areas where six feet of distance cannot be maintained, face coverings are still required.
  • Face coverings are not required while eating or drinking.
  • Face coverings are not required when engaged in an activity that makes wearing one not feasible. The example provided by the Oregon Health Authority is swimming.

Additionally, businesses are required to provide masks, face shields or face coverings for employees and to accommodate employees, contractors, customers and visitors when accommodations are required by the ADA, labor laws at the state or federal level, public accommodations laws at the state or federal level and applicable OHA public health guidance. Businesses are also required to post clear signs about the face covering requirements.

The OHA also recommends but does not require that such entities provide face coverings for customers and visitors who do not have one at no cost to the customers and visitors, to post signs about the requirements in languages commonly spoken by customers and visitors, and to educate employees on how to safely work and communicate with people who need to read lips or facial expressions to communicate through the use of transparent face coverings.

Face coverings are required at all times for employees in hallways, bathrooms, elevators, lobbies, break rooms, and other common spaces in both public and private office spaces. If an individual workspace or meeting room allows for the maintenance of a consistent six feet of distance between people, individuals can remove their face covering in those areas.

All individuals who visit a business or a public space are required to wear a mask, face shield or face covering unless they are under five years of age with the following exceptions:

  • Face coverings are not required while eating or drinking
  • Face coverings are not required when engaged in an activity that makes wearing a mask not feasible, such as when swimming.
  • Face coverings can be briefly removed where an individual needs to confirm their identity by visual comparison, such as at a bank or when interacting with law enforcement.

If an individual has a medical condition or disability that makes it hard to breathe or wear a mask, they can request an accommodation from a business or public space operator to enable full and equal access to the services, transportation and facilities open to the public.

As these unprecedented times continue to unfold, we must all do our part to follow state guidance and reduce the spread of COVID-19. More information and OHA Guidance can be found here.

A civil litigator with an impressive local and international history, Timothy Resch helps employers and small businesses find success in federal and state court litigation matters.

SYK Attorney Laura Nelson and CCBA: Clark County Courts Need Masks

In the July edition of Clark County Bar Association’s monthly newsletter, the HearSay, there is a call for help. The Washington Courts are asking for assistance to help protect those who work in and visit the Clark County Courts.

Dear Vancouver Area Attorneys:
You well know that the COVID-19 global pandemic has seriously impacted most everyone and everything – including our Clark County Courts. As Washington eases back into opening for business, the need to protect our judges, court staff, litigants, and visitors is vital. Accordingly, this is a call for help in donating disposable or washable masks (not required to be N95 masks), or funds to be used to purchase such masks. Please send checks to the CCBA office and write “Masks” in the memo line.

Collection sites include the Clark County Superior Court, our new offices in Vancouver, and the offices of Jeffrey Barrar.

The call for help was sounded by our own Laura Nelson, along with the CCBA.

“With so much out of control right now, let’s take a positive step toward helping others.”

SEC Takes Action: False & Misleading Conduct Related to COVID-19

Investment

The SEC is taking action against numerous companies for their false and misleading conduct related to COVID-19

Since February 2020, the U.S. Securities and Exchange Commission (SEC) has temporarily suspended trading in over 30 stocks and filed several enforcement actions against individuals and microcap securities issuers based on fraudulent COVID-19-related claims.

The enforcement actions have a common theme – fraudulent misrepresentations made in press releases and online forums about the company providing COVID-19 tests or protective equipment, in an attempt to unlawfully drive up the share price of the company’s stock.

These emergency enforcement actions seek to protect the public by freezing defendants’ assets, getting permanent injunctions to bar the wrongdoers from further violations of the securities laws, officer-and-director bars against individual participants, disgorgement of ill-gotten gains, civil money penalties, and penny stock trading bars.

SEC v. Nelson Gomes et al. (filed 06/09/20)

The SEC took emergency action against this group of individuals and offshore entities based on allegations of a fraudulent scheme to profit from the COVID-19 pandemic. The allegations include that the defendants generated more than $25 million from illegal microcap stock sales, using promotional campaigns that falsely asserted that the multiple companies involved could produce medical grade facemasks and automated retail kiosks. Company insiders dumped large amounts of the shares, hiding the activity so investors were unaware of the “pump and dump” scheme. The SEC warns that investors should generally be on the alert for fraud involving microcap stocks, as they may be more prone to manipulative schemes by fraudsters.

SEC v. Jason C. Nielsen (filed 06/09/20)

The SEC brought charges against a penny stock trader based in Santa Cruz, California, who allegedly engaged in a “pump-and-dump” scheme. The SEC claims that the trader made numerous false statements in an online investment forum about a biotechnology company, Arrayit Corporation, to artificially drive demand up, so the trader could sell his shares for a profit.  The trader falsely asserted that the company had developed an approved COVID-19 blood test. The SEC also claims that the trader scheduled and subsequently cancelled several large purchases of the company’s stock as another way to create an apparent high demand for the stock. Investors should be attentive to signs of stock manipulation, especially those regarding products or services related to COVID-19.

SEC v. Applied BioSciences Corp. (filed 05/14/20)

The SEC filed a complaint against microcap company Applied BioSciences Corp. based on the company’s misleading press releases in March 2020, intended to exploit the coronavirus pandemic for profit. The company’s press releases claimed to offer shipment of at-home COVID-19 tests that could be used by individuals and institutions. The SEC complaint alleges that the tests were not approved for at-home use, had not been approved by the FDA, and, as of the press release, the company had not yet shipped any of the tests. The false and misleading press releases caused the company’s stock price and trading volume to soar.

SEC v. Turbo Global Partners, Inc. and Robert W. Singerman (filed 05/14/20)

The SEC filed a complaint against Turbo Global Partners, Inc. and its CEO and chairman, Robert W. Singerman, based on a “pump and dump” scheme to artificially increase stock value by issuing two false press releases in late March and early April 2020. The press releases announced the company’s involvement in a “multi-national-public-private-partnership” to distribute and sell non-contact fever-detecting equipment with facial recognition technology, which would soon be available in each state. The SEC alleges the releases were materially false and misleading in numerous ways, including that no such partnership existed, the equipment did not have such technology, and that the company’s CEO knew his statements to be false. The false and misleading press releases caused the company’s stock price and trading volume to all-time highs.

SEC v. Praxsyn Corporation and Frank J. Brady (filed 04/28/20)

In late April, the SEC charged Praxsyn Corporation and its CEO, Frank J. Brady, with issuing false statements regarding the company’s ability to source and distribute N95 masks. In a press release, Praxsyn claimed that it had established a supply chain that would allow the company to sell millions of masks.  Subsequently, Praxsyn announced that it already had a large stock of masks. The SEC’s complaint alleges that Praxsyn neither had any masks on hand nor a single contract with a manufacturer or supplier. After being pressed by regulatory inquires, the company admitted in a third press release that it never had N95 masks on hand, and its artificially inflated share price and trading volume dropped to about what it had been prior to the false press releases.

The SEC Temporarily Suspended Trading in the Securities of the Following Companies for Violations Related to COVID-19

Using its authority under Section 12(k) of the Securities and Exchange Act of 1934, the SEC temporarily suspended trading due to concerns about the accuracy and adequacy of publicly available information and public statements made by these issuers:

  • Blackhawk Growth Corp. (6/22/2020)
  • Micron Waste Technologies Inc. (5/26/2020)
  • WOD Retail Solutions Inc. (5/20/2020)
  • Custom Protection Services, Inc. (5/5/2020)
  • CNS Pharmaceuticals Inc. (5/1/2020)
  • Moleculin Biotech, Inc. (5/1//2020)
  • WPD Pharmaceuticals, Inc. (5/1/2020)
  • Nano Magic Inc. (4/30/2020)
  • Kleangas Energy Technologies, Inc. (4/27/2020)
  • Decision Diagnostics Corp. (4/23/2020)
  • Predictive Technology Group, Inc. (4/21/2020)
  • SpectrumDNA, Inc. (4/21/2020)
  • SCWorx Corp. (4/21/2020)
  • PreCheck Health Services, Inc. (4/16/2020)
  • Bravatek Solutions, Inc. (4/15/2020)
  • BioXyTran, Inc. (4/15/2020)
  • Signpath Pharma, Inc. (4/15/2020)
  • Applied BioSciences Corp. (4/13/2020)
  • Arrayit Corporation (4/13/2020)
  • Solei Systems, Inc. (4/10/2020)
  • Roadman Investments Corp. (4/10/2020)
  • Parallax Health Sciences, Inc. (4/10/2020)
  • Turbo Global Partners, Inc. (4/9/2020)
  • BioELife Corp. f/k/a U.S. Lithium Corp. (4/9/2020)
  • Key Capital Corporation (4/7/2020)
  • Prestige Capital Corp. (4/7/2020)
  • Wellness Matrix Group, Inc. (4/7/2020)
  • Sandy Steele Unlimited, Inc. (4/3/2020)
  • No Borders, Inc. (4/3/2020)
  • Praxsyn Corporation (3/25/2020)
  • Zoom Technologies, Inc. (3/25/2020)
  • Eastgate Biotech (2/24/2020)
  • Aethlon Medical, Inc. (2/27/2020)

Investing in Stock that was Previously Suspended by the SEC May Be Additionally Risky

The SEC suspends trading in a stock when it believes that suspension is required to protect investors and the public interest. Section 12(k) of the Securities and Exchange Act of 1934 allows the SEC suspend trading in any security (other than an exempted security) for a period not exceeding 10 business days. Even if trading resumes after the 10-day period, the SEC may continue to investigate a company to determine if it has defrauded investors. Importantly, the SEC is not required to alert the public of a pending investigation until an enforcement action is publicly filed, like the ones described above.

Stocks that trade on a national exchange automatically resume trading after the suspension period ends. However, securities traded on the OTC Markets, which typically are where many “penny stocks” or microcap stocks trade, do not automatically resume trading after the suspension period ends. Before trading can resume, certain requirements under SEC and FINRA rules must be fulfilled. This means that there is a risk the OTC stock never resumes trading. With no market to trade in, the stock may be worthless.

What Should You Do If You Discover a Trading Suspension?

The SEC recommends contacting the broker-dealer who sold you the stock, or who quoted the stock before the suspension. Ask if they intend to resume publishing a quote in the company’s stock. If trading resumes, expect a decline in the price of the security as investors may rush to sell of their holdings.

If a FINRA-registered broker-dealer recommended and sold you the stock, depending on the circumstances of the sale, your investment objectives and risk tolerance, and other factors, you may have a claim against the broker-dealer for your investment losses.

Investors should generally proceed carefully if trading in low-value microcap or “penny stocks.” Be wary of online forums or press releases that purport to announce a company’s COVID-19-related products or services.

Darlene Pasieczny, AttorneyDarlene Pasieczny is a fiduciary and securities litigator at Samuels Yoelin Kantor LLP.  She represents clients in Oregon and Washington with matters regarding trust and estate disputes, financial elder abuse cases, and securities litigation. She also represents investors nationwide in FINRA arbitration to recover losses caused unlawful broker conduct.  Her article, New Tools Help Financial Professionals Prevent Elder Abuse, was featured in the January 2019, Oregon State Bar Elder Law Newsletter.

Eviction in Oregon in the Age of COVID-19 – Frequently Asked Questions

Eviction

On June 30, 2020, Governor Kate Brown signed HB 4213 into law, replacing Executive Order 20-13 as Oregon’s eviction moratorium. Among other things, HB 4213 restricts and prohibits certain landlord actions during the COVID-19 emergency period – defined as April 1, 2020 to September 30, 2020 – as they relate to residential and commercial tenants. Landlords and tenants should be aware of the changes made by HB 4213. We here at SYK have compiled a list of Frequently Asked Questions to clear the air on some of the changes this new law makes.

May I deliver a notice of termination to my tenant’s based on their failure to pay rent?

A qualified no. HB 4213 defines as the “emergency period – April 1 to September 30 – and prohibits evictions during that time. If your tenants fall behind on their rent or other charges between those dates, HB 4213 prohibits your ability to evict them based on that nonpayment balance.

However, if your tenant has a nonpayment balance that accrued prior to April 1, 2020, you may be able to proceed with an eviction on a termination of tenancy that was issued prior to April 1, 2020. Please note, it is important to point out that every county is in a different reopening phase. Some courts may not be willing to enforce eviction notices whether or not HB 4213 applies to your tenant. And some counties may have rules and orders related to evictions that are more stringent than the statewide law.

May I charge my tenants a late fee for failing to pay rent?

During the emergency period, a landlord may not assess a late fee. Additionally, a landlord may not report a tenant’s nonpayment as delinquent to any consumer credit agency.

If my tenant falls behind, but begins to pay again, may I apply that rent to their past due rent?

No; HB 4213 creates a new order for applying payments received from tenants. If you receive payments from your tenant, it must be applied first to rent for the current period, then to utility charges, then late rent payment charges, and finally to fees or charges owed for damage claims against the tenant.

What if I want to sell my rental property to someone who wants to make it their home?

HB 4213 allows for the sale of the property and termination of the tenancy in this circumstance. You are still able to sell your rental property, as long as a landlord provides at least 90 days’ written notice to a tenant not more than 120 days after accepting an offer to purchase, and the property is to be used as the buyer’s primary residence.

If your buyer, on the other hand, is going to use the rental property as a rental, then no notice to the tenant is required, and the tenancy continues.

Once the emergency period ends on September 30, 2020, may I begin the process of evicting my tenant for not paying rent during the months of April 2020 through September 2020?

No; HB 4213 also creates a six-month grace period that begins on October 1, 2020, and ends on March 31, 2021. This grace period is designed to give tenants time to pay their outstanding balance of rent. During that time, a landlord cannot evict a tenant based on a failure to rent during the emergency period. However, if a tenant fails to pay October 2020, rent – the first month outside of the emergency period – that failure can result in a properly issued eviction notice.

How will I know my tenant is going to use the rental period to pay their nonpayment balance? Does the tenant have an obligation to give notice?

Tenants are only required to give their landlords notice of their intention to use the grace period if the landlord sends them a written notice that states when the emergency period ended and that rent is still due. If a tenant fails to do so, a landlord can recover half of one month’s rent in damages once the grace period ends. A tenant’s notice must be actual notice under ORS 90.150 or ORS 91.110 or by electronic means delivered to the landlord. A landlord is not required to give their tenants notice of the grace period, although landlords have the option to do so if they choose. If a landlord does not give their tenant notice of the grace period, tenants do not have to give their landlords notice of their intention to use the grace period.

My tenant is receiving publicly funded rental assistance. Am I entitled to those funds as their landlord?

No; HB 4213 specifically states that a tenant is not required to pay all their publicly funded rent assistance to a landlord as payment for rent.

What if I want to evict my tenant for reasons other than nonpayment of rent? Am I allowed to do so?

Under HB 4213, a residential landlord, in most situations, cannot terminate a tenancy without cause during the emergency period. However, a residential landlord may terminate a tenancy without cause during the grace period. Though most no cause/landlord qualifying reasons for eviction are not available during the emergency period, a residential landlord should consult an attorney about their particular situation. HB 4213 does not prohibit commercial landlords from terminating for no cause. HB 4213 also does not prohibit landlords for terminating for cause. Please note that courts in counties that are in Phase 1 of reopening may not be hearing eviction proceedings yet, pursuant to the Chief Justice’s Orders issued in May. Check with your county’s court clerk to determine whether eviction proceedings have resumed in your county.

Are there any penalties for trying to evict my tenant?

A landlord who violates HB 4213 may owe their tenant up to three months’ rent, actual damages, and attorney fees, if a tenant prevails in court. Additionally, the tenant may receive an injunction to recover their possession of the rental property.

Denise Gorrell draws upon her extensive knowledge of restaurants and the wine industry to inform her real property and commercial law practice. She helps hospitality industry clients navigate complex, important issues such as business formation, real estate agreements, trademarks, OLCC rules and other governmental regulations.

Danger: Stressed Out Lawyers Ahead (Tips & Tricks Also Provided)

As a form of self-help therapy for dealing with a global pandemic, I reached out to numerous legal friends and colleagues to learn how they are coping with COVID-19 and this lack of control that we are all struggling with. My article, COVID-19 Lawyer Stress: SOS, was published last month in the Multnomah Bar Association’s newsletter. Some of the takeaways include:

  • Zoom meetings, both for work and for fun, are covered.
  • Hobbies like cooking, music, reading, cutting your own hair or even passing the time by watching crazy squirrel feeders are addressed.
  • The benefits of fitness, yoga, meditation and mindfulness strikes a chord for many.
  • While some people find stress relief with structure, yet others need sustained breaks for stress relief.

We are all in the same ocean paddling as fast as we can, but we are just in different boats right now. When I asked one friend how she was doing, she responded, “I vacillate between coping remarkably and failing miserably.” Another responded, “I have been on a roller coaster…some good days; some bad days.” And yet another said, “But in an honest moment I would say that like other tragedy-like periods in my life, my personal go-to mode is to lean in and plow through it with action (being called to the moment), and in the process I don’t really take good care of myself. The signs are all over the place, but my brain instinctively works that way. The intentional piece is real – the will is what I am fighting now.” And it’s not just our stress, but stress for our families: “It’s been a process to digest, this entire process so far, and I cried when they announced school was closed for the year.”

Yet another attorney reported there can be moments of peace, “but then my little energy of flame goes out and I am back to barely keeping my head above water.” Another attorney said, “It has been like watching a tidal wave come in to shore and now being tossed about as the wave hit the shore, waiting to resurface to catch my breath.” And the stress is not just for what we are enduring now, but what is to come. Another friend shared, “Right now, I am stressed about going back to the office before there are effective treatments or a vaccine.”

Can’t we all identify with these statements – some days, or some moments, seem fine, or even if they are not, we take action and plow through? That’s what problem-solving lawyers do, right? But we don’t have control right now and the truth is, we never did. Keep talking to others. Keep connecting in your own way. Keep trying. It’s okay to ask for help, particularly when we are all missing or grieving something. Strive for progress, not perfection – and we will be together soon.

Victoria Blachly: SYK AttorneyVictoria Blachly is a partner at SYK, and an experienced fiduciary litigator that works with many elderly clients, cases and causes. She is also a proud Board Member for the Oregon Alzheimer’s Association Chapter.

Oregon Supreme Court: Churches’ Challenge Struck Down

New Multnomah County Courthouse

A group of churches and public officials in Baker County challenged Governor Brown’s executive orders aimed at slowing down COVID-19. On Friday, June 12, 2020, the Oregon Supreme Court struck down the churches’ challenge.

Previously, Judge Matthew Shirtcliff of the Baker County Circuit Court granted a preliminary injunction, which rejected a number of Governor Brown’s “Stay Home Save Lives” restrictions related to public gatherings and business operations. Judge Shirtcliff ruled that Governor Brown’s restrictions were unconstitutional.

Judge Shirtcliff’s decision was then heard by the Oregon Supreme Court. Governor Brown’s challengers conceded that the governor had the power to limit public gatherings and business operations during a pandemic. However, they argued that she could only do so for a period of 28 days. Attorneys for Governor Brown argued that the police powers granted to the governor in ORS chapter 401 authorize certain emergency powers.

While the plaintiffs in the Baker County case argued for a 28-day limit, other groups in locales across the country are rooting their arguments elsewhere. Such is the case where churches allege that stay home orders infringe on religious freedom, granted by the First Amendment of the U.S. Constitution. Governor Brown’s challengers raised this argument, but the Oregon Supreme Court chose not to address those allegations.

The Oregon Supreme Court considered other jurisdictional decisions, including the U.S. Supreme Court, as well as a lawsuit brought against the California Governor Gavin Newsom. In Jacobson v. Massachusetts, decided over one-hundred years ago, the U.S. Supreme Court supported elected officials’ broad power to respond to public health emergencies. In South Bay United Pentecostal Church v. Newsom, the U.S. Supreme Court denied a request to suspend the California governor’s executive order placing limits on public gatherings in order to slow the spread of COVID-19.

As the global pandemic continues to affect communities across the nation, lawmakers and government officials face the continuing debate on whether restricting public gatherings and business operations violates the constitutional rights of Americans – both in their state constitutions as well as the U.S. Constitution. Only time will tell how other state courts – and federal courts – address challenges to these restrictions.

Denise Gorrell draws upon her extensive knowledge of restaurants and the wine industry to inform her real property and commercial law practice. She helps hospitality industry clients navigate complex, important issues such as business formation, real estate agreements, trademarks, OLCC rules and other governmental regulations.

Colleen Muñoz is a litigator at SYK. Her practice is centered around commercial and fiduciary litigation focusing on real property, employment, and construction law.

Victims of COVID-19 Scams & Cybercrime Need to Act Fast

Victims of COVID-19 Scams and Cybercrime Need to Act Fast – FBI’s Financial Fraud Kill Chain May Recover Fraudulent Wire Transfers

Cybercrime is becoming ever more pervasive, and with so many more people working at home during the COVID-19 coronavirus pandemic, the risk of a fraudulent wire transfer and other financially motivated crimes is higher than ever.

Fraudsters use crisis events to target good-hearted investors.

The SEC and other federal and state regulatory agencies are paying close attention to COVID-19-related financial fraud, such as fraudulent stock promotions and unregistered offerings, charitable investment scams, and community-based financial frauds. Since February 2020, the SEC has suspended stock trading in connection with COVID-19 for at least 23 companies, and has initiated at least five emergency enforcement actions against companies seeking to exploit investors with false and misleading promises. These investment scams include fraudulent claims of N95 mask production, and manufacturing COVID-19 blood tests and thermal scanners for fever detection.

The FBI’s Financial Fraud Kill Chain:  A Resource for Recovering Stolen Funds

Unfortunately, while regulatory agencies work hard to shut down fraudulent scams, it can be difficult to impossible to recover money from the fraudsters.  Especially if the investor funds or cybercrime victim’s bank account funds have been transferred overseas. The Financial Fraud Kill Chain (FFKC), a program administered by the FBI, is a critically important tool that can cut off large international wire transfers. But victims need to act fast, within 72 hours of the wire transfer.

How does the Kill Chain work?

Financial fraud scams are often international, with unsuspecting investor money transferred from the United States to overseas financial institutions via international wire transfers through the SWIFT system. Cybercriminals hacking email accounts may use personal information to prey on individuals (“I’m traveling overseas and need money for a plane ticket home”). Businesses are also targets of cybercriminals. For example, corporate account takeovers and business e-mail compromise scams may be used to redirect legitimate wire transfers to fraudulent overseas accounts.

The Kill Chain utilizes the FBI’s international relationships to help U.S. financial institutions recover large international wire transfers. If the Kill Chain is activated, the FBI can prevent the withdrawal of stolen funds by cutting off the SWIFT transfer.

What kind of transfer qualifies to initiate the Kill Chain?

The FFKC can only be activated if:

  • The wire transfer is $50,000 or more;
  • The wire transfer is international;
  • A SWIFT recall notice has been initiated; and
  • The wire transfer occurred within the last 72 hours.

To initiate the FFKC process, you should immediately contact your local FBI field office and also notify your financial institution that originated the transfer. Because time is of the essence, call your local FBI office and fill out an on-line complaint through the FBI’s Internet Crime Complaint Center (IC3).

Providing the FBI with more information will allow the agency to respond more effectively, but all complaints should include the following:

  • Victim business name and address,
  • Transaction type, amount, and date,
  • Originating bank name and address,
  • Beneficiary bank name and address,
  • Beneficiary account number,
  • Beneficiary bank location (if known), and
  • Intermediary bank name (if known).

If you or your business has been the victim of wire transfer fraud, consider still reporting it to the FBI even if the fraud does not meet the above criteria to initiate the Kill Chain.

And as we all work to protect ourselves and each other during the coronavirus pandemic, COVID-19-related investments scams should be reported to the SEC and your state’s securities regulator

Darlene Pasieczny, AttorneyDarlene Pasieczny is a fiduciary and securities litigator at Samuels Yoelin Kantor LLP.  She represents clients in Oregon and Washington with matters regarding trust and estate disputes, financial elder abuse cases, and securities litigation. She also represents investors nationwide in FINRA arbitration to recover losses caused unlawful broker conduct.  Her article, New Tools Help Financial Professionals Prevent Elder Abuse, was featured in the January 2019, Oregon State Bar Elder Law Newsletter.

A Pandemic Economy: Modifying Spousal or Child Support Awards

Oregon’s unemployment rate has risen to a historic high of almost 15{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} in the wake of the COVID-19 pandemic, leaving many in a state of uncertainty about how they will make ends meet. For those who are party to a child or spousal support award, a change in employment may be grounds for modifying the terms of their support award. When there has been a significant, unanticipated change in economic circumstances, the court will consider a petition to modify a child or spousal support award. You would be hard pressed to find anyone who anticipated the COVID-19 pandemic. If you have lost your job or are otherwise significantly impacted by the pandemic, you may consider requesting a child or spousal support modification.

Courts determine the child support awards using a formula based on the income of both parents as well as other factors. Because courts deviate from this formula only in extraordinary circumstances, parents who wish to modify their child support obligations should run the numbers to see if their change in income will result in a change to their child support award. The Oregon Department of Justice provides a useful calculator to help parents determine child support awards.

The guidelines for spousal support are less formulaic than those for child support. Courts will modify spousal support after a change in economic circumstances, if the modification supports the original purpose of the award. Some parties’ judgments do not specify the original purpose of the award. In those cases, the court will assume the award was based on an attempt to distribute the incomes of the parties fairly. The court may then modify the award if either party has a substantial change in income. However, if both parties have a substantial decrease in income, then the court will be less likely to modify the award because the relative position of both parties has stayed the same.

For both child and spousal support modifications the court has the authority to modify the award retroactively, but only to the date of a party’s modification request. This means if you were laid off in March or April and you do not file to modify until July, the earliest date the modification will be effective is July. Filing a motion as soon as you learn about a significant change in income is important because a retroactive award allows you to receive money for the time that motion is in court.

The first step to modifying child or spousal support is to file motion with the court and give notice to a co-parent or ex-spouse. Many courts in Oregon are currently closed or operating on limited hours due to the pandemic. If you are planning to file with your county court, you may wish to check the status of your court on the Oregon State Courts website. We encourage anyone interested in making a request for support award modification to consult an experienced family law attorney.

Emily Clark Cuellar is a litigator at Samuels Yoelin Kantor. Her practice is centered around families, and her passion is helping families navigate all the various obstacles they may face. Her practice focuses on domestic relations and fiduciary and probate litigation.

Because Your Government CARES

Valerie Sasaki, of Samuels Yoelin Kantor, LLP facilitated a “Cocktails and Conversation” discussion with the Portland Chapter of Women in Insurance and Financial Services, which explored the recent Coronavirus Aid, Relief, and Economic Security (“CARES”) Act. The CARES Act is Congress’ comprehensive legislation to provide relief to individuals, families, and businesses that are adversely affected by the Coronavirus pandemic. Despite frequent news coverage and criticism, the scope and effect of the CARES Act can seem impenetrable because it contains so many separate moving parts. In this discussion, Ms. Sasaki walked through the different components of the CARES Act and explained how each works to combat the economic hardship brought about by the Coronavirus epidemic.

The CARES Act is a $2 trillion economic relief package that creates new aid programs and expands existing programs. State and local governments will receive $339.8 billion, the majority of which goes to specific COVID-19 response efforts. The rest of the state and local government relief is divided between education, community development, and family assistance programs.

Aid to individuals totals around $560 billion. More than half the aid for individuals will come in the form of recovery rebates more commonly known as stimulus payments. In addition, the Act provides for a temporary $600 per week increase to employment benefits.  Independent contractors are eligible for direct government assistance through the end of 2020. On the public health side, the Act mandates that private insurance plans must cover COVID-19 treatments and vaccines and offer tests free of charge.

The second largest component of the Act is $500 billion for large businesses. Most of the relief to big businesses comes in the form of fully refundable tax credits available for 50{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} of payroll compensation, although there is a substantial allotment of given directly to airlines. These larger business relief funds, however, comes with limitations (the “stick” to the “carrot”), which include: a 1-year ban on stock buybacks; additional reporting requirements; and, oversight by a Special Inspector General.

The $377 billion fund for small business is mostly allocated to the Payroll Protection Program (PPP). The PPP is a massive effort to provide forgivable loans to companies with less than 500 employees. To qualify for forgiveness, the companies must use 75{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} of the loan for payroll. The Act also creates a substantial expansion of Economic Injury Disaster Loans (EIDL), an existing program designed to help small business meet expenses during a disaster. The Act reduces interest rates and provides emergency cash advances to EIDL recipients.

For more information about the CARES Act see the slides from Ms. Sasaki’s talk.

Valerie Sasaki specializes in jurisdictional tax consulting, working closely with Fortune 50 companies involved in audits before the Oregon or Washington Departments of Revenue. She also works with business owners on tax, business, and estate planning issues in Oregon or Southwest Washington.

 

Powerful Words: Positive and Negative Language

Susan Russel shares, through the American Academy of Estate Planning Attorneys, how powerful both positive or negative language can be. These tips are helpful to keep in mind, whether you are managing a difficult legal situation with your counsel or even if you are managing a quarantine.

Negative and powerless language can sound like:

  • I “have” to deal with this (victim, lack of control)
  • They are the reason (blaming others)
  • Here’s another problem (problems not solutions focused)
  • I doubt it will work (lack of faith in systems, self, or team)
  • I hope we can make it work (lack of commitment)
  • I have no control over what is happening (lack of control)

Positive language that empowers us and others, sounds like:

  • I “get” to test this new technology out (opportunity focused)
  • We “can” reinvent what we do (belief in ability, systems, self and team)
  • We “will” get through this (committed, confident, action-oriented)
  • Let’s discuss solutions and modify our systems (solutions and systems focused)
  • Let’s identify our actions (in action and in control)”

Victoria Blachly: SYK AttorneyVictoria Blachly is a partner at SYK, and an experienced fiduciary litigator that works with many elderly clients, cases and causes. She is also a proud Board Member for the Oregon Alzheimer’s Association Chapter.