Overview Regulation D of the Securities Act of 1933 (the “Act”) is a common exemption from registering securities under Section 5 of the Act. The exemption provides that registration is not required when an issuer conducts a private offering under certain conditions. One important requirement is that most investors be “accredited investors” as defined by the Act. Any investor familiar with private offerings is undoubtedly aware of the accredited investor definition and is directly impacted by these changes. The United States Securities and Exchange Commission (“SEC”) is charged with, among other things, promoting the securities markets and protecting investors. Every offer and sale of securities must be registered with the SEC pursuant to Section 5 of the Securities Act of 1933, as amended (the “Securities Act”), unless subject to an exemption. In private markets, the registration requirement is exempted under certain exemptions, when disclosure requirements are limited, and securities offerings in private markets are only available to investors as pursuant to certain exemptions, including Regulation D of the Securities Act of 1933, as amended (the “Securities Act”). Some exemptions allow limited participation by non-accredited investors, but by and large, the private markets are restricted to “sophisticated” investors who qualify as “Accredited Investors.” The SEC considers accredited investors to be sufficiently sophisticated in financial matters to justify the exemption from the stringent securities registration requirements Contrarily, some believe access to private markets should be further expanded. SEC Commissioner Hester Peirce tweeted Wednesday: “Americans shouldn’t have to ask the SEC for permission to invest, but today’s accredited investor rule at least offers people a path to ask permission based on their education, rather than simply telling them ‘no, unless you’re rich.’” Commissioners Lee and Crenshaw voted against the changes, stating that the amendments leave the wealth threshold, discussed below, unchanged. Prior to Expansion Under Section 501 of Regulation D[1], the Securities Act defines an “Accredited Investor” in categories: A natural person is an accredited investor if he or she: has income exceeding $200,000 in each of the two most recent years (or $300,000 in joint income with a person’s spouse); and reasonably expects to reach the same income level in the current year[2]; or has net worth exceeding $1 million (individually or jointly with a spouse), excluding the value of a primary residence.[3] Certain entities qualify as accredited investors if they have over $5 million in assets. Other categories of accredited investors include: Any nonprofit organization, corporation, business trust, trust or partnership not formed for the specific purpose of acquiring the securities offered with total assets in excess of $5 million. Any director, executive officer, or general partner of the issuer of the securities being offered or sold, or any director, executive officer, or general partner of a general partner of that issuer. There has been a long-standing debate in the legal and financial communities regarding who can participate in securities offerings in private markets. In 2012, the Small Business Forum recommended a “top-to-bottom review of the exempt offering landscape.” In 2015, the staff of the SEC released a “’Report on the Review of the Definition of “Accredited Investor’”, examining a variety of new approaches to the definition. As part of its mandate, the SEC presumes “Accredited Investors” possess sufficient financial sophistication, can adequately protect against and sustain related losses, and can “fend for themselves.” Regulation D is “intended to encompass those persons whose financial sophistication and ability to sustain the risk of loss of investment or ability to fend for themselves render the protections of the Securities Act’s registration process unnecessary.” See, Regulation D Revisions; Exemption for Certain Employee Benefit Plans, Release No. 33-6683 (Jan. 16, 1987) [52 FR 3015]. Expansion On June 18, 2019, the SEC requested comments in the “Concept Release on Harmonization of Securities Offering.” Many recommendations by commenters were not contemplated in the staff recommendations, including: (1) self-certification and (2) retain professionals to advise non-accredited investors in order to qualify as accredited. On August 26, 2020, the SEC announced amendments to the definition of an “Accredited Investor”, to take effect 60 days after the Final Rule’s publication in the Federal Register. These amendments revise Rule 501(a), Rule 215, and Rule 144A of the Securities Act. Rule 215 has been revised to replace the existing definition, replaced by a cross reference to Rule 501(a). Rule 144A has been revised to expand the definition of “qualified institutional buyer,” to include limited liability companies (“LLCs”) and rural business investment companies and (“RBICs”), among other institutional investors, so long as they satisfy the $100 million threshold. Rule 501(a) has been revised and expanded to include: Natural persons, based on “certain professional certifications, designations or credentials or other credentials issued by an accredited educational institution, which the Commission may designate from time to time by order.” These include holders in good standing of the Financial Industry Regulatory Authority (“FINRA”) Series 7, Series 65, and Series 82 licenses. With respect to investments in a private fund, natural persons who are “knowledgeable employees” of the fund. Clarification that LLCs, RBICs, SEC- and state-registered investment advisers, exempt reporting advisers may qualify A new category for any entity, including Indian tribes, governmental bodies, funds, and entities organized under the laws of foreign countries, that own “investments,” as defined in Rule 2a51-1(b) under the Investment Company Act, in excess of $5 million and that was not formed for the specific purpose of investing in the securities offered; “Family offices” with at least $5 million in assets under management and their “family clients,” as each term is defined under the Investment Advisers Act of 1940, as amended; and “Spousal equivalents,” who may pool their finances for the purpose of qualifying as accredited investors. Why it matters to you Access to private markets will allow more individuals to participate in initial public offerings, private placements, and other investment opportunities. Regulation D also restricts who can be solicited to participate in investment opportunities. The expansion of the definition will afford businesses more opportunities to grow and expand. Other Notes The SEC reserves the right to change which certifications, designations or credentials qualify a natural person as an accredited investor. Noticeably excluded are: (1) attorneys; and (2) holders of the new Securities Industry Essentials (“SIE”) FINRA certification, which allows individuals without sponsorship by a broker-dealer to hold a FINRA license. As a result, this includes financial industry representatives, but excludes individuals who passed the introductory SIE exam designed to replace the Series 7 as the introductory exam. The SIE certification dispels with the requirement that an employer sponsors an employee.For more information: contact Michael J. Zussman, 908-827-2500, mzussman@olenderfeldman.com, or Jacob Shulman, 908-964-2464, jshulman@olenderfeldman.com [1] 17 CFR 230.501(a) (“Rule 501(a)”). [2] 17 CFR 230.501(a)(6). [3] 17 CFR 230.501(a)(5).

While questions remain as to how Courts will ultimately rule on whether business interruption claims may provide recovery under an insurance policy, a recent decision is an important win to plaintiff-policyholders seeking to clear the initial pleading hurdle in their litigations against insurers who have denied their claims. Countless businesses nationwide purchased business interruption insurance coverage from insurers to protect their businesses from an unanticipated crisis. Such a crisis struck in March 2020 when the novel coronavirus, known as COVID-19, spread across the globe forcing governments to take dramatic action to “slow the spread” of the virus. In New Jersey, Governor Phil Murphy issued Executive Orders in March 2020 that, among other things, required all non-essential businesses in New Jersey to close, and, ordered New Jersey residents to stay home. These orders caused many businesses to temporarily close and incur substantial losses. To mitigate these losses, businesses looked to their insurance policies to provide coverage for the interruption of their operations. Insurers across the nation have taken a hardline stance in denying such claims and in moving to dismiss litigation initiated by policyholders disputing those denials. A New Jersey trial court recently denied an insurer’s motion to dismiss a COVID-19 business interruption suit brought by OlenderFeldman LLP on behalf of a group of optometry practices. In Optical Services USA/JC1 v. Franklin Mutual Ins. Co., No. BER-L-3681-20 (N.J. Super. Ct. Bergen Cty. Aug. 13, 2020), the policyholder plaintiffs allege they closed their businesses in compliance with statewide orders and, as a result, suffered significant financial losses. Plaintiffs submitted claims under their insurance policies to their insurer, Defendant Franklin Mutual Insurance Company (“FMI”). FMI denied the insurance claims, forcing the plaintiffs to file suit. In a manner consistent with the approach maintained by insurance carriers across the nation denying coverage to insureds that diligently paid premiums, FMI moved to dismiss Plaintiffs’ Complaint arguing that because “there is no known instance of COVID-19 transmission or contamination within the premises of plaintiffs’ businesses,” there was no “direct physical loss.” Plaintiffs argued in opposition that a (1) a dangerous condition on the property (such as the potential presence of COVID-19) can constitute “physical loss,” and, (2) the closure orders “not only affected plaintiffs’ businesses, but they affected … all properties around plaintiffs,” triggering civil authority coverage. The trial court denied FMI’s Motion to Dismiss agreeing with plaintiffs’ position that FMI’s narrow interpretation of “direct physical loss” was unsupported by controlling legal authority in New Jersey, and further, that “the language which forms the basis of the complaint and the filing of a Motion to Dismiss is subject to further analysis and interpretation.” In a potential boon to policyholders, the Court further noted that “since the term ‘physical’ can mean more than material alteration or damage, it is incumbent on the insurer to clearly and specifically rule out coverage in the circumstances where it was not to be provided.” (Emphasis added). A copy of the transcript of the argument and decision can be found here. For further guidance and counsel on pursuing business interruption coverage for COVID-19 under your insurance policy, or any other litigation-related matter facing your business, please contact Sean Rose (srose@olenderfeldman.com) in OlenderFeldman’s Commercial Litigation Group.

Effective October 2, 2020, SBA Employees and Paycheck Protection Program (“PPP) Lenders received an SBA Procedural Notice, outlining the required procedures for loan forgiveness for an entity that that is undergoing a change of ownership. For the Complete OlenderFeldman Memorandum outlining PPP Loan Forgiveness, Change of Ownership, and Borrower's Responsibilities, Click Here. For more information, contact info@olenderfeldman.com

On September 14, 2020, New Jersey enacted legislation S2380 that provides COVID-19 related benefits to employees across the State. The new law creates a rebuttable presumption of workers’ compensation coverage for COVID-19 cases contracted by “essential workers” during the current COVID-19 pandemic. Notably, the new law is effective immediately and retroactive to March 9, 2020, the date of Governor Murphy’s initial executive order declaring a state of emergency. OlenderFeldman LLP has prepared FAQs to further explain the burden of proof under the new law and outline the definitions of “essential worker”: Click Here for the FAQs. Further information or guidance concerning the new law can be obtained from OlenderFeldman LLP. Please contact Howard Matalon (hmatalon@olenderfeldman.com) or Alex Umansky (aumansky@olenderfeldman.com) in the Employment Practices and Employment Litigation group.

On December 27, 2020, President Trump signed into law the Consolidated Appropriations Act, 2021, better known as the $900 billion COVID-19 rescue stimulus bill. Among other provisions, the final bill modifies the paid leave provided by the Family First Coronavirus Response Act ("FFCRA"). Under the FFCRA, certain employers were required to provide Emergency Paid Sick Leave (“EPSL”) and Expanded Family Medical Leave (“EFMLA”) through December 31, 2020. OlenderFeldman LLP has prepared this FAQ to further explain what this means for employers as we enter 2021: Q. Are employers required to extend FFCRA paid leave into 2021? A. No. Mandatory FFCRA Leave expired on December 31, 2020 and the newly enacted stimulus bill does not extend the requirement that employers provide paid leave beyond that date. However, an employer may continue to provide FFCRA leave (both EPSL and EFMLA) until March 31, 2021 (for the same reasons as available under the original statute), and claim the payroll tax credit associated with this leave. But, doing so is voluntary. Plus, an employee that has already exhausted his or her bank of FFCRA leave does not get it replenished. Note that after March 31, 2021 (without further extensions), any COVID-19-related leave provided by employers will be solely at the employer's expense. Q. Does the voluntary extension increase the amount of paid sick leave available to employees? A. This extension does not create a new bucket of FFCRA leave for employees on January 1, 2021, but instead merely extends the payroll tax credit for an employee's use of the original allotment of FFCRA leave through March 31, 2021, if an employer voluntarily extends the leave. If an employer opts to voluntarily continue to provide FFCRA leave through March 31, 2021, employees still only have available the original 80 hours of EPSL allotted as of April 1, 2020. Thus, as it relates to FFCRA paid sick leave, from January 1 - March 31, 2021, employers are only entitled to claim the payroll tax credit for leaves taken from that original allotment of paid sick leave. Q. Does the FFCRA extension increase the amount of paid family leave available to employees? A. Unlike the 80 hours of EPSL, paid EFMLA, however, may work differently. Because the FFCRA's paid EFMLA provisions (which only apply to COVID-19 childcare-related absences) operate as an amendment to the FMLA itself, it is possible, depending on the way an employer calculates its FMLA leave year (e.g., rolling vs. calendar year basis), that employees will qualify for a new bucket of FMLA leave on January 1, 2021. If this is the case, then employees could have available an additional 12 weeks of FMLA under the FFCRA, with the final 10 weeks paid, beginning on January 1, 2021, to use through March 31, 2021. Ultimately, the Department of Labor will need to further address this issue in the new year. Q. Are employers still required to pay employees for any unpaid FFCRA leave taken between April 1, 2020 and December 31, 2020? A. Yes. If you have not yet paid employees who took FFCRA leave in 2020, you will be required to do so. Even if the employer does not elect to extend the FFCRA leave into 2021, they must compensate the employee for eligible FFCRA leave taken in 2020. Q. Will the new administration make FFCRA paid leave mandatory again? A. It is possible that the incoming Biden administration may bring back FFCRA legislation that will require employers to provide mandatory paid leave past March 31, 2021. All Employers and particularly those that plan on providing FFCRA leave in Q1 2021 should prepare now for a possible extension of FFCRA benefits past Q1. We will update this FAQ as soon as additional information becomes available. Further information or guidance concerning the new law can be obtained from OlenderFeldman LLP. Please contact Howard Matalon (hmatalon@olenderfeldman.com) or Alex Umansky (aumansky@olenderfeldman.com) in the Employment Practices and Employment Litigation group.

On December 27, 2020, the “Consolidated Appropriations Act, 2021” (“CAA”), was signed into law. The CAA modifies and reopens the U.S. Small Business Administration’s Paycheck Protection Program initially created under the CARES Act. The reopened Paycheck Protection Program is available through March 31, 2021 and is available for first and second-time applicants. Generally, PPP loans continue to be available to the same borrowers as the first round, through March 31, 2021 with the following exceptions: Businesses that were not in operation on or prior to February 15, 2020 are ineligible for PPP loans. Publicly traded companies are no longer eligible for PPP loans. Businesses that have received a new grant for shuttered venue operators under the CAA are not eligible for PPP loans. Businesses that are owned by entities organized in or have significant operations in the China or Hong Kong or businesses with a board member who is a resident of China. Any business that has permanently closed (temporary closures or suspended operations may remain eligible). Any business which members of the executive and legislative branches of the United States government, or their spouse, owns or controls 20% of the ownership of the business. The CAA also amended the bankruptcy code to allow bankruptcy courts to permit debtors in Chapter 11 (small business reorganization) cases to obtain PPP loans on an expedited basis. First and second-time PPP borrowers may receive a loan amount of up to 2.5 times their average monthly payroll costs (with a cap per employee of $100,000 annualized) in 2019, 2020, or the year prior to the loan. PPP borrowers with NAICS codes starting with 72 (such as hotels and restaurants) can receive up to 3.5 times their average monthly payroll costs on second PPP loans. The maximum loan amount is $10 million for first-time borrowers and $2 million for second-time borrowers. In addition to payroll, rent, utilities and interest on mortgages, the CAA allows for businesses to use PPP proceeds for additional expenses such as personal protective equipment for employees, costs associated with outdoor dining, supplier costs, costs associated with software, cloud computing and other human resources and accounting needs, and property damage costs due to public disturbances that occurred during 2020 that are not covered by insurance. To be eligible for full loan forgiveness, PPP borrowers must spend no less than 60% of the funds on payroll over a covered period of their choice between 8 and 24 weeks. First time PPP loans are available to borrowers that were in operation on February 15, 2020 and fall into one of the following categories: Businesses with 500 or fewer employees that are eligible for other SBA 7(a) loans. Sole proprietors, independent contractors, and eligible self-employed individuals. Not-for-profits, including churches. Accommodation and food services operations with NAICS codes starting with 72 that have fewer than 500 employees per physical location. Second PPP loans are available to borrowers if they have: 300 or fewer employees. Used or will use the full amount of their first PPP loan on or before the expected disbursement date for the second PPP loan. The borrower must have spent the full amount of the first PPP loan on eligible expenses. Experienced a revenue reduction of 25% or more in all or part of 2020 compared with all or part of 2019. Proceeds from the initial PPP loan are excluded from the calculation of gross receipts. For more information, contact John Billiris at jbilliris@olenderfeldman.com

2020 was a year of change for many companies, with certain market segments prospering. Continued low interest rates coupled with capital looking for strong returns fueled arobust transactional market. We hope this information on companies we represented as transaction counsel in 2020 is helpful insight into the types of companies and industries that are attractive to buyers and investors in the current business environment. Click here for OlenderFeldman's 2020 By the Numbers Venture Capital and M&A Transactions.

We are very pleased to announce the promotion of Jillian Benda Goldberg to Partner in the Firm’s corporate practice group. Jillian's expertise in strategic investments, mergers and acquisitions, sophisticated commercial contract negotiations, and more is a much appreciated asset to the department and to our clients who have had the pleasure of working with her. For more on Jillian: click here.

In today’s complex, work-from-home, and “flat-world” business environment, technology rules. However, along with technology comes countless industry-specific, international, national and state-based regulatory schemes which dictate how, when, why and where data can be processed – not to mention the new world issues with employees working remote. Of course, these practical, regulatory and legal requirements are often in addition to your contractual and business obligations. Keeping track of everything can be complicated, and appropriate compliance is not always easy or straight-forward. In an effort to streamline the process, attached is a useful checklist of items you should have in place or consider addressing to meet your various privacy and data security obligations. Click here for Check List. If you have any questions about any of the above, or seek additional information concerning compliance with any or all of the above items, please contact Michael J. Feldman, Esq. at mfeldman@olenderfeldman.com or 908-964-2486.

OlenderFeldman will soon be launching a new data privacy and security law and business FREE e-Newsletter. We call it VIGILANT PSA. Simply e-mail Michael J. Feldman at mfeldman@olenderfeldman.com to subscribe and join our exclusive mailing list to receive our first FREE e-Newsletter. WHAT IS VIGILANT PSA? VIGILANT PSA is designed and dedicated to enabling you to stay at the forefront of the latest advances in all about providing updates, information and practical advice/tips about Protecting, Securing and Advancing your and your clients’ and customers’ privacy, data and security in today’s modern Cyber world. VIGILANT PSA is designed to provide you with tools and tips to help you to be ever watchful, constantly aware, and always vigilant. WHY: Data breaches, malware and phishing attacks are increasing exponentially. International, national, state, local and industry-specific laws, rules and regulations are increasing almost as quickly. Proper data security and privacy practices and protocols are no longer optional, they are a necessity. Your brand and business privacy and security protocols are essential to promote and advance the trust your clients have in your brand and your business. VIGILANT PSA will help you with all the tools and information you need to give your client’s the confidence they need and the peace of mind they deserve. VIGILANT PSA will provide timely updates, tips and information to help you better understand what is going on in today’s Cyber and legal world related to privacy and data security as well as methods and suggestions to improve your knowledge and practices. WHO THIS IS FOR: Individual business owners, and all business/data privacy/security decision-makers and team members. If that is not you, please forward this to the correct individual(s) within your organization so he/she can sign up. HOW TO SIGN UP: Send an e-mail to Mike Feldman at mfeldman@olenderfeldman.com and ask to be added to the VIGILANT PSA PSA e-Newsletter. All you need to provide is your email.

As pandemic restrictions are being slowly lifted, commercial landlords are struggling to satisfy their debt service obligations while anchor tenants keep the purse strings closed. In a recent article, Bloomberg News details the ongoing struggle some of the biggest commercial tenants and landlords on the rarefied real estate known as Fifth Avenue. To read the article, click here. Since the start of the Pandemic, OlenderFeldman, LLP has been helping both commercial landlords and tenants of all sizes navigate these unprecedented times. If you are a commercial landlord or tenant and have any questions or concerns regarding your lease, outstanding rent payments or an uncooperative landlord or tenant, please contact either Rich Angowski (rangowski@olenderfeldman.com) or Jason Hawrylak (jhawrylak@olenderfeldman.com) to discuss your immediate needs.

Welcome to the first edition of the VIGILANT PSA e-newsletter. The VIGILANT PSA e-newsletter is designed and dedicated to enable you to stay at the forefront of the latest advances in all about providing updates, information and practical advice/tips about Protecting, Securing and Advancing your and your clients’ and customers’ privacy, data and security in today’s modern Cyber world. Maybe we will even have some fun along the way. As a reader of the VIGILANT PSA e-newsletter, we invite you to contact Michael J. Feldman, Esq., CIPP/US at mfeldman@olenderfeldman.com if you have any questions, are interested in hearing about any particular topics, or have a suggestionfor who should be interviewed for future editions of the VIGILANT PSA e-newsletter. Thanks for tuning in, sharing around, and hopefully enjoying the read!For access to the Newsletter, click here: Privacy Newsletter-01