From coast to coast, trial attorneys have persuaded a number of cities to sue energy producers in the name of climate change. And while such suits began in the places you might expect – San Francisco and New York City – the city of Hoboken soon will be front and center in the climate lawsuit drama unfolding in American municipalities.
On June 21, the 3rd Circuit Court of Appeals heard oral arguments in a case that Hoboken filed against a number of American energy producers. During my time as Mercer County Executive, my experience taught me that it is better to pursue practical solutions and good faith cooperation on complex problems such as global climate change, than to file contentious lawsuits. Local governments such as Hoboken would be well served with a constructive approach instead of a lengthy and expensive court battle. A divisive and confrontational lawsuit against the companies providing the fuel that families and businesses need won’t do anything to combat climate change.
The impracticality of such climate lawsuits and their applicability in having any effect at all is baffling to me. How would any implied effect of energy producers on climate change be any different for Hoboken than any other city, municipality, township, borough or region? Why would this be addressed locally rather than on a national level? This should be troubling to the people of Hoboken. The city’s lawsuit is part of a cookie cutter strategy led by out-of-state attorneys and environmental interest groups with no real stake in New Jersey. Sher Edling LLP, based in San Francisco, stands to make a fortune if several of the plaintiffs across the U.S. prevail in their lawsuits against energy producers or settles with them. The same firm has trotted out the same lawsuit in numerous other states, municipalities and counties, hoping to cash in on a climate litigation strategy that several federal courts have dismissed.
In the case of Hoboken, this strategy is even more interesting. A legal contract with the New York City-based law firm Emery, Celli, Brinckerhoff & Abady LLP says the Washington, D.C.-based Institute for Governance and Sustainable Development (IGSD) will bear the legal costs accrued by Hoboken. What is the IGSD? The nonprofit launched the Center for Climate Integrity (CCI) in 2017 to support the kinds of lawsuits San Francisco-based Sher Edling has shopped to local governments from coast to coast. In other words, the nonprofit tries to convince local officials that climate lawsuits are a good idea and Sher Edling follows close behind to be the firm filing the lawsuit.
To date, investigative reports have revealed a good deal of the behind-the-scenes motives of the IGSD and its allies. For example, IGSD is one of several groups committed to fighting traditional energy production by advancing litigation. The institute receives funding from the Rockefeller Family Fund, a foundation that has manufactured the broader climate litigation strategy. The Rockefeller Family Fund, records show, gave IGSD over $1 million in 2017 specifically to target energy companies.
The stakes are high. Emery, Celli, Brinckerhoff & Abady LLP, one of the firms authorized by Hoboken to handle the lawsuit, has been approved by the city for steep hourly rates. Official records show rates as high as $850 per hour for one attorney and similar rates for others. In addition, the firm stands to rake in a third of the first $750,000 recovered should the city win its lawsuit or settle and no less than 20% of winnings after that. Attorney Matthew Brinckerhoff, noted in the records, will be the one delivering the oral arguments at the June 21 hearing on behalf of Hoboken.
The bottom line? Out-of-state law firms, teaming with trial attorneys supported by out-of-state nonprofits with anti-energy agendas, are advancing yet another frivolous climate lawsuit with the help of Hoboken officials.
We are experiencing skyrocketing energy prices across the U.S. with the average gas price in New Jersey now over $5 and growing. Public officials should be doing everything they can to mitigate price increases, not filing lawsuits that, if successful, could worsen energy inflation and raise energy prices. After all, an attorney representing other plaintiffs acknowledged one of the goals is to force companies to “raise the price” of their fuel so the cost of climate change will “get priced into” energy products.
The better path for Hoboken and other municipalities, is good public policy that pursues practical solutions and good faith cooperation. The city should drop its climate lawsuit. If not, the court should dismiss it. There are more fruitful, and ultimately more effective ways, to make a difference on climate change.
Bob Prunetti is a former Mercer County executive and former president of the Mercer and MidJersey Regional Chamber of Commerce.
In South Jersey’s low density and rural areas, there is limited or no public transportation. Yet we are experiencing a substantial increase in the construction of large business parks and other employment-generating businesses locating in these areas. Most often, these businesses require a no/low-skilled workforce. However, this very workforce does not have the financial means to afford a personal vehicle and therefore must rely on public transportation. Thus, employers struggle to recruit and retain employees and residents struggle to find employment.
Addressing these challenges, Cross County Connection partnered with the Pascale Sykes Foundation, a philanthropic organization dedicated to building strong families by providing programing to support working low-income families. This 10-year partnership has resulted in the implementation of three Community Shuttle services in Atlantic and Gloucester counties. The primary purpose of these shuttles is to provide transit-dependent residents with access to employment opportunities. According to Census data, more than 21,000 households in Atlantic and Gloucester counties have no access to a motor vehicle. Approximately 70% of the Community Shuttle passengers do not have a vehicle and 64% are commuting to work.
These shuttles are open to the general public and provide excellent connections with NJ Transit bus and rail services, giving passengers access to the region-wide transportation network. In Atlantic County, the Route 54/40 Shuttle provides service between Hammonton and Buena, and the English Creek-Tilton Road Shuttle serves Egg Harbor Township and the City of Northfield. In Gloucester County, the Pureland East-West Shuttle travels between NJ Transit’s Avandale Park & Ride, the communities along Route 322, and the Pureland Industrial Complex.
At the onset of the pandemic, these shuttles maintained a significantly higher percentage of their ridership than the larger public transportation systems. This is due to the fact that shuttle passengers work in essential services, cannot work remotely and are transit-dependent. If they wanted to work, they had no choice but to ride the shuttles. Without the shuttles, many passengers would need public assistance to support their families.
These Community Shuttles rely on NJ Transit grants that require 50% matching funds, currently provided by the Pascale Sykes Foundation. However, the foundation’s long-time planned spend down is in process and it will close at the end of 2022. If no source of replacement funds is identified, the shuttles are in danger of being discontinued. This will not only have a devastating impact on passengers but also on businesses and the local economy.
In South Jersey’s low density and rural areas, there is limited or no public transportation.
The Community Shuttles strengthen South Jersey economically. A 2018 Federal Reserve Bank of Philadelphia study found that the Atlantic County Community Shuttles provided underserved residents with access to employment opportunities otherwise inaccessible. The American Public Transportation Association emphasizes that rural public transportation strengthens local economies, with every $1 invested in public transportation generating $4 in economic returns, and 87% of public transit trips having a direct local economic impact.
A valuable pool of potential employees is available for employment opportunities if public transportation services were available to them. The local and regional economy benefits when transit-dependent individuals can travel throughout the South Jersey region. Although NJ Transit is committed to continuing grant funding for these shuttle services, they cannot fund 100% of the costs. The region needs the South Jersey business community and local governments to assist with the continuation of these vital Community Shuttles.
To learn more about how your business can ensure public transportation availability and promote equitable economic growth in South Jersey, contact Cross County Connection and visit www.driveless.com for more information.
Ronda R. Urkowitz is the executive director of Cross County Connection TMA. The nonprofit organization is the designated Transportation Management Association for South Jersey’s seven counties. The organization works with the business community, local governments and the general public on sustainable transportation options, with the primary goal of getting people to work.
[vc_row][vc_column][vc_column_text]Are you leaving money on the table?
Ryan –
If you are a small business owner in the Garden State who has not yet accessed funding still available from the Small Business Administration (SBA), you might be.
Under the Economic Injury Disaster Loan (EIDL) program, the SBA offers direct relief to small businesses and nonprofit organizations impacted by the COVID-19 pandemic. These funds are not Paycheck Protection Program (PPP) loans. That SBA program has expired.
But the EIDL program has not lapsed, not until the end of the month. So you still have time, and after that, maybe even a little bit more. The SBA recently announced that EIDL loans would continue to be processed even after its Dec. 31 deadline until all funds are exhausted.
How much funding is still available? Billions of dollars, according to Patrick Kelley, associate administrator for SBA’s Office of Capital Access.
So, if you’re a small business still in need of capital, tapping the EIDL program might be the way to go. Consider the following three reasons.
It’s easier to borrow more
Recent changes to the program allow borrowers to take out loans up to $2 million (with collateral and personal guarantees required). The loans can be used to pay for any operating expenses and working capital. Examples include payroll, rent or mortgage, utilities, equipment and other ordinary business expenses, plus paying off debt.
Equally important: If your business has previously received funding through the PPP, the Restaurant Revitalization Fund (RRF) or the Shuttered Venue Operators Grant (SVOG), you still stand to benefit from the EIDL program.
Attactive rates, long-term options
Unlike most PPP loans, EIDL loans must be repaid and are not forgivable. But the interest rates are quite compelling compared to other forms of capital.
For businesses, the rate is 3.75%. For nonprofits, it’s 2.75%. Both are fixed. Given recent headlines that the Federal Reserve is prepared to raise interest rates to counter inflation, these fixed rates look like even more attractive forms of capital.
What’s more, EIDL loans are long term. Their maturity is 30 years, with payments deferred for the first two years. Afterward, payments of principal and interest are made over the remaining 28 years of the loan, with no penalty for prepayment.
These advantages make EIDL loans a more attractive form of capital for small businesses compared to other alternatives.
‘Advances’ without repayment
The EIDL program also offers two types of “advances” that do not have to be repaid. Instead, they act as a grant. Your eligibility depends on your company size, location and amount of revenue your business lost.
The Targeted EIDL Advance, for instance, is available for businesses in low-income communities with 300 or fewer employees. And you must show that your business suffered more than a 30% reduction in revenue. If your company can check off all three boxes, you might be eligible for up to $10,000.
Additionally, there is the Supplemental Targeted Advance. Like the Targeted EIDL Advance, you must be in a low-income area. But there are two key differences: you must have 10 or fewer employees, and you must prove that you sustained a reduction in revenue more significant than 50%. If so, you are eligible for an additional $5,000, for a total of $15,000, none of which needs to be repaid.
While forgivable loan programs are winding down, there are still plenty of attractive programs available for small companies in need of growth capital. After sustaining “key enhancements” to help down-on-their-luck businesses get back on track, the EIDL program is one of them.
If you’re one of them, this program is worth a closer look.
Patrick L. Ryan is the president and CEO at Hamilton-based First Bank. [/vc_column_text][/vc_column][/vc_row]
For most of us, if we have a leaky roof or something in our home that needs repair, we save up so that we can fix it. It would be nice if our gas or electric provider would just hand us money for repairs, but that’s just not reality. In a lawsuit over climate change, the city of Hoboken is trying this trick to get money for its own infrastructure projects. The problem is that Hoboken is sticking the rest of us with the bill. Its lawsuit will make it much more expensive for us to put gas in our cars and turn on our lights.
Regardless of whether Hoboken’s concerns are a result of climate change or poor planning locally, it has become clear that more can be done to prepare for the impacts extreme weather events are having on our shore and low-lying areas. Hurricane Sandy hit my community in Point Pleasant Borough, where I formerly served as council president, just as much as anywhere else. The question is what we are going to do to prepare for it as a community and as local officials.
Hoboken and a few other municipalities across the country are choosing to point fingers at others instead of taking responsibility for allowing overdevelopment to occur and for failing to invest in infrastructure resiliency. Their lawsuits argue that energy companies are to blame for climate change because they sold us gas, electricity and other energy staples we all use daily. They are demanding that the energy companies turn over billions of dollars to fund local projects that they say will protect their municipalities from the perceived impacts of climate change but that they likely have not spent any time developing or studying.
As someone whose professional career has been largely devoted to local governance, I am deeply concerned about the impact these lawsuits will have on our communities, from local jobs to the affordability of gas and electricity for our families and businesses. It also sets a terrible precedent.
First, deciding who should pay for any localized impacts of climate change is not a liability issue for the courts to decide. The U.S. Supreme Court has already spoken on this general issue. In 2011, it unanimously ruled that energy companies could not be held liable for greenhouse gas emissions under federal law. In her ruling, Justice Ruth Bader Ginsburg said the EPA and Congress, not the courts, are the appropriate venues to deal with climate policies. This includes the causes and impacts of climate change.
The Supreme Court’s ruling was reinforced in April of this year when federal appellate court dismissed New York City’s climate lawsuit. Hoboken’s lawsuit is a carbon copy of New York City’s case. There is no legal foundation for any of these claims. With such unambiguous and authoritative rulings, it is irresponsible for Hoboken and the climate activists behind this litigation to continue their legal campaign.
Second, as a municipal leader, it was my responsibility to weigh our energy needs and economic interests along with environmental concerns. This litigation, though, will do nothing to address the environmental concerns that leaders in Hoboken are raising. Worse, public records reveal the law firms peddling these lawsuits will siphon hundreds of millions of dollars from any funds dedicated to infrastructure projects. If we need to spend money on local projects to help better mitigate environmental impacts, there is no need to enrich more lawyers along the way.
Third, municipal climate lawsuits directly affect our state and local economic health. The truth is that oil and natural gas provide a significant amount of money to our state economy – more than $21 billion. Moreover, the oil and gas industry supports more than 142,000 jobs here, in such industries as services, retail, manufacturing and construction. Further pursuit of wasteful litigation threatens our financial security.
Finally, climate litigation is unpopular because it will lead to higher energy prices. Findings from a poll conducted by the Manufacturers Accountability Project indicated that only 2% of voters believe that suing companies is the best way to pay for existing climate change damages.
Similarly, nearly half of those polled thought that it was unfair to blame a handful of companies for an issue that is global in nature.
For these and many other reasons, many municipal leaders have voiced their opposition to climate litigation, including in coastal California. This litigation is just not a good idea, and it won’t lead to any solutions.
If elected officials in the Garden State are serious about becoming more resilient in the wake of major weather events such as Hurricane Ida, they must confront this complex problem with the collaborative mindset and innovative spirit that America exemplifies. Instead of wastefully squandering vital taxpayer money on trial attorneys and professional activists, municipal leaders in New Jersey should be working with a broad coalition of business, government, infrastructure designers, and environmental leaders on the type of innovative measures that can provide more resiliency in the face of extreme weather events and mitigate the local impact.
Michael Thulen Jr. is a former president of the Point Pleasant Borough Council.
The government forced small businesses to close during the COVID-19 emergency. Then officials claimed they would provide “help” with a loan and vague promises of possible forgiveness. Predictably, small businesses began scrambling to find banks to submit loan applications. The regulations and guidelines were changing daily. The programs were a mess. Now that the dust has settled, the government is investigating small businesses for spending the money that these businesses were basically coerced into taking. This is a collision course given that government bureaucrats work for one of the largest organizations in the world and often do not understand the way small businesses operate. They often have never faced the difficulties of running a business and have unreasonable expectations.
There is a widespread push in many federal agencies to investigate small businesses that borrowed funds from the Small Business Authority and/or the Payroll Protection Program (PPP). Small businesses as well as their owners now need protection against governmental agencies that have turned against those small businesses they claimed they were trying to help. These investigations are dangerous because they can result in both criminal and civil penalties that can destroy a business and its owners. It is important to keep in mind a number of factors that can make the difference between an investigation becoming a minor inconvenience or a life changing event.
Triggering Factors. An investigation may be triggered by a variety of different factors. They can begin with a complaint from a disgruntled employee, former business partners or a revenge-seeking spouse. They also can be triggered from new reports that business owners have used PPP funds on lavish spending such as vacations and expensive cars. Nothing promises an investigation more than politicians and governmental agencies that become embarrassed by bad press. It is never a good idea to “poke the bear” by engaging in flagrant violations of any governmental program.
Investigations can also be triggered by more subtle indicators. Government agencies often look into suspicious activity reports submitted by financial institutions, such as banks and other lenders, through the Treasury Department. In this scenario, a bank or lender may submit a suspicious activity report flagging impermissible business expenses such as exaggerated payroll, non-essential purchases, or exaggerated market losses. The best way to avoid an investigation is to make sure that PPP or Economic Injury Disaster Loan application documents are accurate and that funds are properly accounted for.
Navigating a PPP or EIDL Loan Investigation. Even if your business has taken all the preventative measures, investigations may be unavoidable. If you or your business is being investigated, you must act quickly because early mistakes can lead to disastrous results. Immediately seek counsel with extensive experience handling such investigations. It is important to communicate with the government only through counsel so that your statements will not be misused by overly zealous bureaucrats.
Furthermore, there are categories of information that must be provided and there is information that is not subject to the jurisdiction of the investigators. The “goldilocks approach” of providing just enough information to be compliant without producing documents that are beyond the scope of the investigation is critical. This is a legal minefield that must be handled with care.
Second, there must be a “litigation hold” to prevent the inadvertent destruction of documents related to your EIDL or PPP loan. The destruction of documents alone can result in civil and criminal penalties.
Third, use your accountants, operations department, financial partners, or payroll specialists to account for the use of PPP or EIDL funds. Most investigations into PPP or EIDL loans focus on expenditures and a solid defense can sometimes be found with proper accounting.
Finally, thoroughly review all documents submitted in support of your loan application for accuracy and be prepared to provide an explanation for any mistakes.
Important Documents to Preserve. It is extremely important to preserve all documents relating to the EIDL or PPP loan. Those documents often contain explanations and defenses that can be used during investigations. For instance, documents that indicate that the business needed loans to support ongoing operations are critical. Likewise, e-mails, letters, text messages or other communications with financial lenders may establish that the business was working in good faith when seeking to procure the loans.
In addition, any records that reflect how the proceeds from the PPP or EIDL fund were spent are critical. Ideally, there will be records demonstrating that the loan proceeds were kept separate from other funds and only used on legitimate expenses. Regardless of whether the funds were segregated, records demonstrating that the PPP or EIDL funds were used for proper payroll and other legitimate expenses are essential. Preservation is key.
In short, these investigations are similar to crime show investigations. The targets that “lawyer up” at the beginning of the process, often have better results than those who handle the investigation themselves. Even if your business did nothing wrong, without proper guidance, governmental investigators will find a technicality that was violated. Without protection, it will be easier for the government to target your business.
Michael Horn is a partner at Archer & Greiner, specializing in general litigation with an emphasis on commercial litigation, UCC claims, contractual disputes, real estate litigation, products liability litigation, complex litigation, insurance coverage disputes and environmental litigation. Dylan Newton is an associate at Archer & Greiner in the business litigation practice group. He works on a variety of matters including contract disputes, breach of employment agreements and restrictive covenants, breach of commercial tenancy agreements, employee and shareholder disputes, and consumer fraud claims.
With scientists from the United Nations reporting this week that climate change will be intensifying over the next 30 years because of our planet’s addiction to fossil fuels, it is now incumbent on all business sectors to make changes. Even if corporations around the world decided – finally and uniformly – to cut emissions today, we are learning that global warming will still occur, around 1.5 degrees Celsius within the next two decades.
But this report from the Intergovernmental Panel on Climate Change does not indicate all is lost. We can collectively prevent the situation from becoming even worse – if global corporations stop pumping more and more carbon dioxide into the air over the next 30 years. That requires an immediate shift away from fossil fuels.
The U.S. is considered among the 10 biggest emitters of fossil fuels in the world – an alarming fact for any builder who uses coal-fired materials. I can only imagine how the mass build-out of New Jersey since the end of World War II has contributed to the environmental catastrophe the globe is now facing.
Within the state’s home building industry, we must do more to reduce our carbon footprint and build smarter, reversing the trend.
As an environmentally conscious builder in New Jersey, we use LED lighting, Energy Star windows and sensor lighting to minimize energy consumption. We are also strong advocates for solar energy, which I advocated for 15 years ago, when many homeowners doubted if these strange-looking panels would even work.
At Needle Point Homes, we incorporate high-efficiency, multi-zone HVAC systems and Energy Star appliances. We also reduce waste on the construction site, ensuring cardboard, glass, low-carbon aluminum and other preferred materials are recycled.
I’ve now seen momentum across the entire green building sector, which is promising. But this latest United Nations report shows, sadly, that our industry will not play a major role in fighting climate change by just constructing more efficient homes, with the latest programmable thermostats or energy-efficient air conditioners that better respond to a hot climate just getting hotter.
We must also raise awareness of the so-called “hard to abate” sectors such as heavy manufacturing and heavy-duty transportation. These sectors are major sources of carbon and have historically proven difficult when it comes to lowering greenhouse emissions. The good news is that at least one major emissions source, aluminum, has a promising path forward.
New technology and approaches are making it possible to produce low-carbon aluminum, a valuable commodity used worldwide for both construction and components parts in manufacturing. Using low-carbon smelters and cleaner energy sources such as hydropowerr, this building material produces just a fraction of the greenhouse gas emissions as traditional aluminum manufacturing processes.
This is precisely the kind of low carbon input that should serve as an example for the green building sector, as the alarm bells from this United Nations report ring loud.
Leaning on the ingenuity of green builders and the political will of our state’s leaders both in Washington D.C. and locally, New Jersey must become a model for sustainable, low-carbon construction, especially aluminum. By doing so, we can reduce carbon emissions and slow, if not stall, the steady destruction of our climate.
After a year of economic turbulence throughout New Jersey, the state is stepping away from its normally rational approach to paid leave policy. State lawmakers are considering a new paid sick leave bill, Senate Bill 3827, that would create redundant benefits to which employees already have access while placing the unfunded costs of this unnecessary mandate directly on New Jersey businesses.
New Jersey already has some of the most robust paid leave laws in the country. Since 2008, the Garden State has been a leader in paid leave policy, shaping balanced laws that address the needs of today’s workforce while recognizing the economic realities that businesses face. Workers in the state currently have access to multiple paid leave sources, including earned sick leave, paid family leave insurance and temporary disability insurance, to name a few. In early 2020, New Jersey lawmakers bolstered this coverage even further by expanding the state’s earned sick leave law to specifically cover circumstances arising from the pandemic. Because these substantial paid leave policies have been in place, New Jerseyans have had access to the very same COVID-19-specific paid leave proposed by S3827 for well over a year.
Despite this, S3827 would require employers of all sizes to provide their employees with up to 80 hours of supplemental COVID-19 paid sick leave in addition to any paid sick leave already earned by the employee or provided voluntarily by the employer. This new proposed leave would also be applied retroactively to the beginning of 2021, only serving to compound the compliance challenges and increased costs for businesses statewide. While the bill’s intent is notable, it addresses a problem that already has a solution. This supplemental paid leave is just not needed.
Importantly, the unfunded paid leave mandate proposed by S3827 would place the significant costs of providing supplemental benefits squarely on New Jersey employers. The proposed new leave is structured to line up with federal Families First Coronavirus Response Act (FFCRA) standards, which provides federal tax credits to employers with 500 or fewer employees to offset the costs of required benefits. Unlike the FFCRA, S3827 not only expands redundant paid leave requirements to employers with more than 500 employees but fails to provide critical economic relief, forcing vulnerable businesses to cope with this new compliance burden alone when they are already fighting to survive. Therefore, larger employers – those with more than 500 employees – would be left without offsetting financial support from either federal tax credits or state aid.
There has never been a more critical time to support New Jersey businesses already grappling with new pandemic-related paid leave requirements. States like Massachusetts and Maryland have continued to recognize this importance. Both states recently passed legislation that paired supplemental COVID-19 paid leave requirements with direct funding to help employers provide these new benefits. During this crucial period of recovery, the last thing New Jerseyans need is an increase in compliance challenges that could force businesses to close and take critical jobs away from an already exposed economy.
While S3827 is well-intentioned, state lawmakers must recognize the immediate threat that redundant and unfunded mandates like this pose for businesses and workers alike. There is still time for New Jersey legislators to right the course and defeat the proposal. The state can once again lead by example and show that it is possible to create paid leave policies that provide valuable employee benefits without creating counterproductive challenges for businesses already struggling to stay afloat. At the end of the day, S3827 is not the answer and must be opposed.
Aliya Robinson is senior vice president of retirement and compensation policy at The ERISA Industry Committee, a national advocacy organization exclusively representing large employers that provide health, retirement, paid leave and other benefits to nationwide workforces.
Many young New Jerseyans continue to have strong reservations about the current job market even as our state economy steadily reopens. A recent OnePoll survey commissioned by Universal Technical Institute found that 64% of New Jersey residents ages 18-35 are not confident that all office jobs will come back after the pandemic. Meanwhile, many workers remain reluctant to enter or re-enter some non-office fields of employment, in part because of the volatility brought on the pandemic.
Their fears are understandable. Many industries have been upended or decimated by the COVID pandemic and may not fully recover for some time. But there are skilled trade industries throughout the country that desperately needed more workers before the pandemic and will continue to need workers when we are past the pandemic. We need to encourage more young New Jerseyans to enter skilled trades to fill an ever-growing demand for labor, curb unemployment and underemployment, and help fuel our state’s continuing economic recovery.
On the face of it, the numbers and success stories seem like they should be enough to attract new workers into the skilled trades. The U.S. Bureau of Labor Statistics projects an annual average of 43,400 job openings nationwide for welders every year through 2029. For welders, cutters, solderers, and brazers, the U.S. Bureau of Labor Statistics projects an annual average of 43,400 job openings between 2019 and 2029. Job openings include openings due to net employment changes and net replacements.
For automotive service technicians and mechanics, there will be an annual average of 61,700 job openings between 2019 and 2029; for bus, truck mechanics, and diesel that average will be 24,500 job openings during the same time period. The demand for heating, air conditioning, and refrigeration mechanics and installers (HVACR) is expected to increase by the thousands every year through 2029. Plumbers, pipefitters, and steamfitters will see 20,900 job openings between 2019 and 2029.
Unfortunately, we’re still fighting the stigma that trade schools are only for those who can’t succeed at four-year colleges, and that the trades lack the prestige of jobs that might require a four-year degree. This stigma persists despite the increasingly high degree of technical skill needed and the demand for people to work as plumbers, electricians, HVAC technicians and auto technicians.
As a result, workforces in critical industries are chronically short of skilled, trained employees. There is growing consensus among some industry associations and groups that skilled trades aren’t replacing retiring workers fast enough with new blood. The American Welding Society, for example, warns that the industry will experience a shortfall of more than 375,000 welders by 2023.
This needs to change, just as the COVID pandemic has changed the landscape of work, perhaps forever. We don’t know what office jobs will come back, or how the tourism and hospitality industry will look six months from now, or the future of retail. But we do know that we will continue to need our cars maintained and repaired, that roads and buildings will still need to be built, and that all of us will need a plumber or electrician at some point.
Jobs in the skilled trades are resilient, difficult to off-shore and relatively pandemic-proof. They can also be a critical part of our economic recovery if we can encourage more young New Jerseyans to consider training for fields where there is strong demand for skilled talent. This means persuading students, parents, educators, and workers to look beyond traditional four-year degree jobs and think about the high-tech jobs in the skilled trades, where more trained, talented employees are needed.
It’s been more than two months since the first 3D-printed home was put on the market in the United States, and society has had a chance to see what’s possible. The question remains: Is it scalable? Can 3D homes become a real option for widescale affordable housing? And beyond that, could it be a solution to balancing the current housing market which very much favors sellers? As a part of the team that designed and planned this nation’s first livable 3D home, we can unquestionably say the answer is “yes.”
With an asterisk.
The International Residential Code, New Jersey edition regulates every aspect of newly built homes, from how tall a building can be to the materials used. The code is updated every three years. Local municipalities then put their own spin on the code, appropriate for that given community. The code is purposely flexible, so new technologies and demand for new spaces and materials can be met.
– DEPOSIT PHOTOS
For example, before May 2020, no single-family dwelling in New Jersey could be legally constructed with less than 800 square feet of space. Then the state adopted a tiny-home provision (Appendix Q) allowing for more housing options, giving rise to 400-square-foot homes and other fascinating real estate trends.
A similar provision for 3D-printed homes could be a solution to the housing crisis plaguing communities throughout the country, including communities in New Jersey. It’s time that the IRC, as well as New Jersey code officials, take a look at incorporating this building type into the uniform code.
Right now, there isn’t enough affordable housing – or housing in general – to meet demand around the country. This shortage contributes to an increased homelessness. The United States produced 7.3 million fewer homes than it needed to keep up with population growth and consumer demand between 2000 and 2015; in 2015, the U.S. Department of Housing and Urban Development reported there were only 62 affordable rental homes for every 100 “very low-income” households, and a meager 38 affordable homes for every 100 households with “extremely low incomes.”
But it isn’t only low-income buyers who are affected by today’s housing market trends. According to Redfin, the median sales price of homes in New Jersey have increased by 16.3%, with approximately 50% of homes selling over the list price. In contrast, the number of homes for sale decreased by 24.3%. With an increase in demand caused by those in the workforce fleeing cities for suburban living, and a lack of inventory, buyers who previously may have had no trouble are also finding it difficult to break into the housing market. This is particularly true for first-time millennial homebuyers.
As to what is causing the lack of inventory, a hesitancy among homeowners to list during the pandemic is to blame, as well as a slowdown in the production of new construction. A large part of this slowdown is the result of increasing lumber and other product prices, which are at record highs, and a shortage of labor. Production of 3D-printed homes eliminates the need for those products that have increased in price significantly, as it uses concrete, and cCdecreases the number of laborers needed to staff the production with the utilization of 21st century technology. With those challenges eliminated, 3D-printed homes could not only have a positive effect on affordable housing for low-income buyers, but also on younger, first-time homebuyers who are faced with skyrocketing home prices due to the conditions of the market.
The need these homes could meet doesn’t end with those actively in the market for them. The ease with which 3D-printed homes can be built also creates the possibility of them being used as shelters in areas where natural disasters are prevalent. They could provide relief from climate disasters like Hurricane Harvey, which decimated homes in Texas and Louisiana in 2017 and left thousands homeless to this day. Applying this technology could be a solution to quickly rebuild homes and neighborhoods, or at the very least provide safe shelter for those who need it. And because the homes are built by a method of concrete construction that is steady, durable and can withstand hurricane winds, floods, and fires, the homes would likely survive future storms.
There is a reason why buying a home is an integral part of the American Dream, and if this past year has shown us anything in the real estate market it is that that dream is alive and well. But in order to make it achievable for all Americans we need to look to the future and find solutions to the challenges we face in the present. 3D-printed homes have the potential to change the way we look at homebuying. It can level the playing field by increasing the supply of homes at a lower cost with a reduced production timeline, and if municipalities accept this potential and modify their zoning and building codes accordingly, the impact will be long lasting.
H2M architects + engineers has a long history of navigating complicated zoning and code restrictions, and we believe clear restrictions are essential for quality home development. And as much as we want to keep our IP strong, we know the only way 3D-printed homes can become a true affordable-housing option is through new state provisions making their development more seamless.
As architects, these projects are more than just designs. They are proof of concept for what is possible. With this technology, the home is the model, so the only variable is the architect’s creativity and knowledge of how it should be constructed. Even in its infancy, the technology to actually build the home is there – and it’s only going to get more advanced.
We encourage state officials to engage architectural and engineering professionals from every level of home building to ensure the next iteration of the New Jersey Residential Building Code meets 3D-printing capabilities. Supply needs to be increased to balance the housing market and make homeownership accessible, and 3D-printed homes are no longer a novelty. They could be the key.
Kevin Paul is vice president and discipline director in charge of private-sector real estate at H2M architects + engineers.
How does food waste affect New York and New Jersey? New York State generates 3.9 million tons of food waste every year; while New Jersey estimates that its residents throw out 1.3 million tons. Based on estimates from ReFED, the food wasted in New York and New Jersey has an economic value of more than $10 billion. New York and New Jersey also face significant food insecurity and climate change issues.
To put these numbers in context, can you envision 130 billion meals of food wasted annually in the USA? Or can you visualize 400 pounds of food waste per person per year?
As a result, New Jersey and New York, which do not always see eye to eye, are moving almost in lock step to implement food waste recycling mandates within the next year. These mandates will require certain commercial and institutional enterprises to address food waste through a combination of food donation and recycling.
There are key differences between the mandates in New York and New Jersey; for instance, New York’s mandate will require food donation whenever possible, but New Jersey’s only implicitly incentivizes food donation. However, there also are many similarities between the two mandates; in fact, both mandates apply to large quantity food waste generators (i.e., entities that generate more than a specified amount of food waste), and both apply only if there is an organics recycler with sufficient capacity within 25 miles.
Entities that may be subject to the mandates should begin now to evaluate their compliance obligations, which likely will involve evaluation of waste disposal history and conducting waste audits, reviewing waste disposal arrangement and contracting, establishing partnerships with food rescue organizations and organics recyclers, evaluating the necessary infrastructure and financial investments, and preparing employee and customer training programs.
Additionally, whether or not your entity will be subject to the mandates, there are many reports building the “business case” for voluntary food waste reduction efforts. Did you know that the cost of food waste to the food industry is estimated at about $250 billion per year?
The New York mandate
Timeline. New York’s food waste recycling mandate is scheduled to take effect on Jan. 1, 2022. The New York State Department of Environmental Conservation has proposed (but not yet adopted) regulations to guide the implementation of the mandate. The comment period on these regulations closes April 27, 2021, and the regulations are expected to be adopted in summer/fall 2021.
Waste threshold. New York’s mandate applies to businesses that generate 2 or more tons of food waste per week at a single location. Potentially subject businesses include supermarkets, large foodservice businesses, higher education institutions, hotels, correctional facilities and sports and entertainment venues. It also is important to note that co-located businesses, for example two stores in the same shopping mall, that transport and dispose of food waste together are counted as a single business for purposes of the 2-ton waste threshold.
Food donation and recycling requirement. Businesses that meet the 2-ton per week waste generation threshold are required to donate edible food to the maximum extent practicable. Businesses that meet the threshold and are within 25 miles of an organics recycling facility (or intermediary, such as a regional de-packaging facility) with sufficient capacity will also be required to recycle their food waste. For the sake of clarity, an “organics recycling facility” is a facility that accepts and recycles organic waste, such as food scraps, vegetative and/or yard waste, and other natural materials, while an “intermediary facility” is a facility that receives food waste for aggregation and/or prepackaging before the waste is sent to a recycling facility.
Business notifications. The New York State Department of Environmental Conservation will notify businesses that are required to comply with the mandate by July 1 of each year, and businesses must come into compliance by Dec. 31 of the same year. (NYSDEC has said it will notify generators this year on June 1.) This annual determination by the NYSDEC will be based on proxy calculations (i.e., calculations based on information about the business and not actual waste data), although the agency may use site-specific data if available. If the proxy calculation suggests a business will generate more than 2 tons of food waste per week, a business can use site-specific data to establish that it actually is below the waste threshold and therefore obtain a waiver of the requirements of the mandate, but there are specific procedures that apply to waiver requests. Businesses that may be close to the threshold may want to generate site-specific data now so they are prepared to evaluate whether they actually need to comply with the mandate.
Waivers. Subject businesses can request a waiver of the mandate’s requirements based on “undue hardship,” including by showing that the total cost of solid waste management including organics recycling is at least 10% greater than the total cost of disposal without organics recycling. The NYSDEC has proposed specific requirements and procedures for any entity wishing to take advantage of the undue hardship exemption. Initial waiver requests will be accepted between June 1 and Sept. 1, 2021.
Exemptions. Exempt businesses automatically include hospitals, nursing homes, adult care facilities and elementary and secondary schools across New York State, as well as all businesses within New York City, given that the Big Apple already imposes a food waste recycling requirement.
Requirements for the organics industry. New York’s proposed implementing regulations also contain a few new requirements for organics recyclers and waste haulers, such as additional reporting requirements.
The New Jersey mandate
Timeline. New Jersey’s food waste recycling mandate is scheduled to take effect on Oct. 14, 2021. The state has yet to propose regulations to implement the law, leading to speculation that the effective date of the mandate will be delayed. However, representatives of the New Jersey Department of Environmental Protection have not suggested that the mandate will be delayed and have stated they expect to provide guidance to businesses that may be subject to the mandate in spring/summer 2021.
Waste Threshold. New Jersey’s mandate applies to businesses that generate 52 tons or more per year (i.e., 1 or more ton per week on average) of pre-consumer food waste. It is important to note that New Jersey’s mandate has a lower waste threshold than New York’s, but New Jersey’s mandate counts only pre-consumer food waste (i.e., food that has not been issued or sold to a consumer) while New York’s includes pre- and post-consumer food waste. New Jersey’s mandate also does not explain how co-located businesses will be treated.
Recycling requirement. New Jersey’s mandate requires businesses that exceed the 1-ton per week threshold to recycle food waste if the business is located within 25 road miles of an authorized food waste recycling facility. This aspect of the New Jersey mandate is interesting in two respects. First, it limits the scope of the organics recycling facilities that trigger the mandate to only authorized food waste recycling facilities, as opposed to all facilities licensed to accept organic waste, and it determines the distance based on road miles, as opposed to a simple distance calculation. Both of these factors will increase the complexity of determining compliance with the mandate. New Jersey maintains a list of authorized food waste recycling facilities, i.e., facilities with a specific permit known as a “Class C Permit” that accept food waste; additional facilities are under development by private and public parties. We do not yet know whether New Jersey will notify generators that are subject to the mandate, as New York plans to do.
Waivers. New Jersey is required to draft regulations that will govern waivers of the requirements. Like the New York mandate, New Jersey has said it will waive the requirements of the mandate if the cost of the recycling requirement is at least 10% greater than the cost of disposal without organics recycling. In each case, it would be helpful to have a little more clarity from the regulators on how this comparison will be made.
Beyond the rules
New Jersey’s and New York’s mandates follow a half dozen similar laws in other states, including several in the northeastern U.S. states. A mandate, however, is a governmental tool to build awareness and drive change and it is proverbial tip of the iceberg. When you go beneath the surface of the iceberg, the issues raised by wasted food are broader and deeper than simply reducing food waste from being incinerated or going to landfill, and there are many more reasons than compliance with the mandate to address food waste.
Food is one of the most important, fundamental life priorities. Food waste solutions will have the best value and significant impact when we work together to create an integrated strategy that incorporates all five P’s in these sustainability dimensions: people, planet, prosperity, peace and partnerships.
The entire food ecosystem will benefit from addressing the imbalance of food scarcity and food waste.
Innovation, behavior change, policy, state mandates, financial investments, and climate impact are change factors along with trends such as food scarcity awareness, food waste management, food pantries, community refrigerators, ghost kitchens, food waste upcycling toward a circular economy and food consumption trends like slow food movement, mindful eating, plant-based and sustainably or locally sourced food options and targeted nutrition plans for well-being and good health.
Consider your organization’s cultural shift from a “Food Waste to Food Value” mindset and how to align your efforts to drive the broad spectrum of changes that are necessary to meet the 2030 global goal to halve the world’s food waste. In other words, think about whether your business can treat excess food as a resource, rather than as a waste. For instance, what if the tomato residue from creating tomato juice could be re-used to create healthy and delicious tomato sauce? What if inedible food scraps could be sent to an organics recycler and the remaining nutrients returned to the soil through compost to continue to support agriculture in the region? The possibilities are endless.
Bring your curiosity, business sense, innovative mindset, collaborative thinking, change orientation and environmental and social conscience to explore the wide variety of solutions to build a more sustainable, circular, food ecosystem for your organization. Can you re-imagine the future of your organization by using a systemic review of your end-to-end processes to identify benefits in a multitude of ways? Will your organization desire to work toward an integrated strategy of the five P’s to maximize food value and minimize food waste?
Everyone will benefit from pursuing efficiencies in this more sustainable food ecosystem. A few of the likely benefits for your organization may include:
Innovation, business process improvements, more effective infrastructure, operational cost efficiencies;
Environmental, social, governance visibility;
Corporate social responsibility initiatives, including public-private partnerships for food bank donations, sponsoring start-ups and entrepreneurs, non-profits, etc.;
Corporate sustainability branding;
Employee engagement and retention for “doing good” actions, driving behavior change, new job creation and employee training designed with a quality job strategy to manage your new approach to a food value system;
Sustainability reports with metrics dashboards to show key metrics such as GHG emission reduction, water usage, cropland and landfill reductions.
New statistics and studies support the business case for food waste reduction efforts. Did you know that, for every $1 invested in food waste reduction efforts, the median return on investment is $14? In other words, many businesses may be able to realize an even greater return on investment in food waste reduction efforts.
New York and New Jersey are moving ahead with food waste recycling mandates to address the environmental and social ills of wasted food. To comply with the mandates, there are a wide variety of tasks that must be completed, from evaluating current waste generation and contracting, to employee and customer training.
Experts can help you review your organization’s circumstances in light of the mandates and create a roadmap for your compliance that identifies and implements appropriate solution options with your vision of a more sustainable food ecosystem.
Matthew A. Karmel is an attorney in the Environmental Law Group at Riker, Danzig, Scherer, Hyland & Perretti where his practice includes traditional environmental counseling and litigation, as well as matters relating to sustainability, climate change, environmental justice, food waste and composting. Pamela C. Sammarco is the founder and CEO of Green Training Associates LLC, which develops people’s capabilities to solve the world’s challenges and build sustainable organizations.
Most of us get our health care from a doctor’s office or a clinic, not a hospital. Whether it’s primary care or a specialty, such as cardiology, ophthalmology or pediatrics, these practices deliver what’s known as ambulatory care.
Dong
There are at least 6,000 ambulatory care practices in New Jersey, according to the U.S. Centers for Medicaid and Medicare Services. Yet, they are underrepresented in the broader health care ecosystem. New Jersey has the second highest per capita income in the country, yet the 2020 America’s Health Rankings suggest the state ranks 41st in income inequity, 44th in access to primary care providers, 45th in flu vaccination coverage, 44th in drug-related deaths and has one of the lowest rankings for health disparities.
Physician practices here and across the country deserve to have a seat – and a voice – at the table to obtain access to the latest evidence and innovations that can allow them to operate more efficiently, evaluate and improve the quality of patient care and ultimately, the health of patients and the community in New Jersey.
Nguyen
A local practice-based research network (PBRN) is one solution to amplifying clinical practices and improving population health. A PBRN brings together practices focused on digging into the questions and challenges they face in improving quality of care, efficiency and community engagement, and links them with experienced research scientists who can help. Practice-based research moves health care research from academic settings into the real world.
Last year, COVID-19 forced practices in New Jersey and much of the country to temporarily shut down, but it didn’t eliminate patients’ needs. High-risk patients with complex conditions like diabetes, often need to come in for routine tests and prescription refills. Kids need to stay up to date on vaccination schedules. Expectant mothers need consistent prenatal care. Almost overnight, practices had to figure out how to continue providing safe and high-quality care and ensure that no one fell through the gaps.
To patients of some practices, the scramble to re-optimize the office workflows and transition to solutions like telehealth appeared seamless, even if it was not. What did the practices do that allowed them to respond so quickly?
They followed the research. But practices shouldn’t have to do this on their own – particularly during a public health emergency like a pandemic.
Many of the operational changes made at practices in the wake of COVID-19 were real-life applications of evidence learned from research and conversations with fellow health care professionals. We have a lot to learn about what these applications and changes mean going forward for practices, and patients, and furthermore, what they mean to communities across New Jersey.
A PBRN can offer the resources and opportunities needed to identify and investigate health care questions that are relevant and meaningful to practices. The creation of a PBRN also signifies that there is ongoing commitment and investment in activities and infrastructure that transcends a single research project. PBRNs can further provide physicians with continuing education and medical students and residents with training opportunities.
The concept of a PBRN is not new – dating back over 30 years – and continues to play an instrumental part in learning about health care best practices, as well as the implementation and dissemination of science into practice settings. At present, there are about 185 PBRNs across the United States, whose practices are serving over 100 million patients, according to the U.S. Agency for Healthcare Research and Quality.
Now more than ever, we have so many opportunities to conduct research with practices. Studying the ways in which practices responded to the pandemic can help us prepare not only for future public health emergencies but also for implementations of health care innovations and policy changes. For example, many practices independently stood-up their telehealth systems in a matter of days and developed their own educational materials to teach patients how to use web portals.
Additionally, many community health centers, also known as Federally Qualified Health Centers, are known for using team-based care models that bring behavioral health and primary care providers into the same room during visits to address both physical and mental wellness. With telehealth and social distancing, community health centers had to innovate to sustain a version of this model.
These practices and others can further leverage research through membership in a PBRN and amplify their efforts to improve care quality for their patients. PBRNs also have allowed practices and researchers to focus on specific initiatives, such as increasing linguistically and culturally competent services for diverse populations and improving care for vulnerable patients in their communities.
By participating in studies made possible by PBRNs, clinical practices have been able to improve their patients’ outcomes, such as better cardiovascular disease measures, greater colorectal cancer screening rates in a rural population, and increased smoking cessation among vulnerable populations.
The Rutgers Institute for Health, Health Care Policy and Aging Research has started to lay the groundwork for a New Jersey Practice-Based Research Network (NJ PBRN), open and free to all physician practices in New Jersey, and will kick off with the Institute’s fourth Catalyst Symposium to be held virtually on June 3-4, 2021.
The timing and the mission could not be more critical to increase the presence of New Jersey physician practices in academic research, bringing them to the table to improve population health and equity for all New Jerseyans.
Dr. XinQi Dong, is director of the Rutgers Institute for Health, Health Care Policy and Aging Research and the inaugural Henry Rutgers Distinguished Professor of Population Health Science. He is a population health epidemiologist and geriatrician. Ann Nguyen, is director of the New Jersey Practice-Based Research Network at the Rutgers Institute for Health, Health Care Policy and Aging Research. She is an assistant research professor and implementation scientist at the Rutgers Center for State Health Policy.
With structured finance transactions on the rise, it is critical for borrowers to understand what a nonconsolidation opinion is and how it fits into the deal. This article will address the law of substantive consolidation, the role of nonconsolidation opinions in transactions and when they may be required and offer practical advice for avoiding common pitfalls.
The doctrine of substantive consolidation refers to the equitable power of a Bankruptcy Court to consolidate the assets and liabilities of separate, but related, entities. When debtors are substantively consolidated, the assets and liabilities of such debtors are pooled and essentially treated as the assets and liabilities of a single debtor. The substantive consolidation of two or more entities may impact on the rights and obligations of creditors and other parties in interest in a case under the Bankruptcy Code.
A court’s determination of whether substantive consolidation is appropriate in any given case is fact sensitive. Courts generally focus on two critical inquiries: whether (1) pre-petition, creditors dealt with the entities as a single economic unit and did not rely on their separate identity in extending credit; or (2) post-petition, the assets and liabilities of the debtors are so entangled that consolidation will benefit all creditors.
Subject to a narrow exception not applicable here, the Bankruptcy Code does not expressly authorize substantive consolidation, but it recognizes that a Chapter 11 plan may provide for the “consolidation of the debtor with one or more persons” as a means of implementation.
A nonconsolidation opinion is an opinion letter issued by counsel to the borrower pursuant to which counsel opines that the assets of the borrower – and the collateral offered to secure the deal – will not be subject to substantive consolidation with, and made available to creditors of, certain affiliated parties in the event of a bankruptcy filing. The opinion is fact intensive and generally much longer than other opinions at closing.
In order to issue a nonconsolidation opinion, the borrower must be a single purpose entity (SPE) and conduct no business other than holding the asset being offered as collateral. While it is more common that the borrower SPE is a new entity formed for the purpose of holding the specific asset offered as collateral in the finance transaction; for example, real property, accounts receivable. In certain cases, recycled entities may also be used.
According to guidance from S&P Global Ratings, a nonconsolidation opinion is appropriately requested by a lender or rating agency to analyze the risk of substantive consolidation between the borrower SPE and affiliated parties that, as a result of the applicable corporate structure, have control of decision-making authority over the SPEs or a majority economic interest in the SPEs. Depending on the circumstances, a lender may also seek an opinion regarding risk of consolidation between SPEs and certain indirect affiliates – such as an affiliate that provides services for the borrower SPE; for example, pursuant to a property management agreement where the SPE’s asset is real property.
Because the ultimate goal of the opinion is to examine whether the borrower and the affiliated parties are at risk of consolidation – and ideally conclude that they are not – the nonconsolidation opinion requires its authors to analyze in detail the organizational documents of the SPE and affiliated parties, all transaction documents and apply relevant state and federal case law to reach a conclusion. Restrictions in the conduct of the SPE borrower in its formation documents and relevant transaction documents, the manner in which the SPE and affiliated parties have in fact operated their businesses, and the existence of other external mechanisms, such as the presence of an independent director, are all critical to this inquiry.
Potential issues
Does the transaction involve an SPE? In order for counsel to give a nonconsolidation opinion, the borrower must be an SPE.
Understand the need for a fact-intensive review. As set forth above, the analysis is fact-sensitive and wide-ranging in scope. It will take bankruptcy counsel drafting the opinion some time to work through all of the documents, understand the transaction and draft what at times can be a 30+ page opinion. Allow appropriate time and budget for this process to meaningfully occur.
Be mindful of the scope of guarantees and indemnities. It is common for lenders to request that certain affiliated parties guaranty certain obligations and offer environmental and other indemnity agreements. If you need a nonconsolidation opinion, proceed with caution. The existence of such documents is not fatal to the consolidation analysis; however, the devil is in the details. The existence of intercorporate guaranties and a related entity obligating itself for the debts of borrower are among the facts a court will consider when deciding whether substantive consolidation is appropriate. Where the guaranty or indemnity is limited to certain bad acts, like contamination of the property, counsel can usually work around the issue. The broader the scope of guaranty or indemnity, the more likely it is that the intent is to make the guarantor/indemnitor generally liable for the loan and the harder it will be to reach the necessary conclusion.
Consider the prior conduct of recycled entities. While less common, a recycled entity may be a borrower in a structured finance transaction. In connection with the opinion, the recycled entity must amend its organizational documents to include SPE language for the conduct of its business going forward and certify that since its formation, it has operated in a manner consistent with those restrictions.
Best practices
Enlist bankruptcy counsel early. Bankruptcy counsel will need to identify appropriate pairings, understand the transaction, and comment on the documents to align them with requirements for the opinion. It may be necessary to revise certain provisions of the transaction and to amend organizational documents, including modification of SPE language and guaranty/indemnification provisions. Accordingly, obtaining input on these issues is often critical to success of the deal.
Expect that clients will have to provide supporting certifications. The SPE borrower and paired entities will be expected to provide certifications regarding the conduct of its business and organizational structure in support of the nonconsolidation opinion. In the case of a recycled borrower, an additional certification will be necessary to affirm the conduct of the entity since its formation. While not often controversial documents, set client expectations regarding their necessity.
Refer to rating agency guidance. A rating agency involved in the transaction will often be a driving force behind negotiation of language in the nonconsolidation opinion; therefore, reference to rating agency guidance is critical in navigating the scope of the nonconsolidation opinion and assumptions and conclusions contained therein.
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