Join Day Rettig Martin, P.C. in congratulating Shareholder Attorney Joseph Day for being named a 2022 Attorney of the Year by the Top 100 Lawyers. Attorney Day has been practicing law for over 50 years. His focuses include labor law, employee benefits, business acquisition, and employment law.
Imagine. It is a powerful tool each of us have. In fact, “Imagine” was the most successful single recording of The Beatles’ John Lennon’s solo career. The song has been covered by artists ranging from Liza Minnelli to Stevie Wonder to Neil Young to Lady Gaga and performed at venues ranging from The Olympics to Concerts for Peace.
While the impact and influence of the song “Imagine” reaches across the globe, and the lyrics such as “imagine no possessions, I wonder if you can” may trigger a mosaic of different emotions, the reality is approximately 74 million Baby Boomers will reach age 65 in just five years without imagining and planning for how their affairs will be settled once they die.
Despite studies showing those 74 million Boomers may have over $30 trillion in assets to leave their heirs, the majority of Boomers either; dismiss estate planning because they mistakenly believe it is only necessary for “rich folks”; or, they procrastinate. In the US, over 55% of Boomers don’t expect to have any money to pass on. About 45% don’t have a Will. Even those with money don’t always plan. A few years ago, Aretha Franklin died without a Will and her Estate was tied up in the inevitable snarl of Legal Administration, a state court process where loved ones can be consumed in the quick sand of time-consuming, confusing, expensive and bureaucratic processes of settling the deceased individual’s affairs.
Face it. Estate planning issues are not reserved to Boomers. All of us now have a digital legacy such as email messages, online financial and social media accounts, digital photos, videos, etc. As people live longer and die online, family members, friends, executors, administrators are left to sift through the daunting task of navigating access to passwords without authority to manage the online accounts of the deceased. Loved ones will face a gauntlet of security hurdles to retrieve information necessary to settle final bills and secure a deceased’s individual’s financial information where fraudster’s are applying for credit in the deceased’s name.
Given the statistics of Boomers not wanting to imagine how to settle their affairs once they are no longer here, and considering the rest of the folks who simply do not understand the implications of the Wild, Wild, West of the Digital Age, it is not surprising that most of us do not have a plan for managing our affairs in the digital world. But is that how we want to leave things for our loved ones? Is that who we are? Is that our legacy?
The good news is; all of us can take a few simple steps to have a plan in place in the event of our death. Fortunately, Robin Williams did. With his tragic suicide came the inevitable fall out associated with three marriages and three children wanting a piece of the pie. But Robin had imagined. Robin had a Will, a Revocable Living Trust and had entered into a Prenuptial Agreement with his third wife. Although his heirs still battled over his Estate, by planning ahead, Robin was able to diminish a lengthy legal battle which had the potential of devastating his family. See https://www.reelz.com/extra/no-stranger-legal-battles-robin-williams-protected-family-similar-fate-death/
While “imagination” is a powerful tool, it is also complex. It is a call for us to imagine something that seems unimaginable in the current world we live in. Yet, the lyrics of “Imagine” have no less relevance in the uncertain world of 2022 than they did in John Lennon’s 1971. Isn’t it time to step up and imagine how you want to leave your affairs when you are no longer on this planet?
The attorneys at Day Rettig Martin, P.C. provide a full complement of affordable estate planning services. If you have any questions about creating or amending a Will or estate plan, please give us a call at (319) 365-0437.
Employee benefit plans subject to the Employee Retirement Income Security Act (“ERISA”), including retirement and health and welfare plans, are attractive targets for hackers, particularly given their potential access to plan assets and participant information. The U.S. Department of Labor (“DOL”) realizes employee benefit plans are vulnerable to cyberattacks and on April 14, 2021, it issued a three-part cybersecurity guidance package containing:
- A cybersecurity best practices summary Cybersecurity Program Best Practices (dol.gov)
- Tips for hiring service providers Tips For Hiring a Service Provider With Strong Cybersecurity Practices (dol.gov)
- A model notice offering participants and beneficiaries online security tips. Online Security Tips (dol.gov)
The DOL’s recent guidance emphasizes that sufficient measures are needed to protect participants and plan assets from cybersecurity threats. The DOL specifically states that responsible plan fiduciaries have an obligation to ensure proper mitigation of cybersecurity risks. Since plan sponsors and plan fiduciaries also have fiduciary obligations to prudently select and monitor service providers, the cybersecurity practices of their service providers should be a significant consideration in carrying out their fiduciary obligations.
While some of the DOL guidance is aimed at retirement plans subject to the Employee Retirement Income Security Act (“ERISA”), and does not specifically address ERISA group health and welfare plans, there appears to be no reason why the reasoning of the approach and the best practices and tips identified would not apply to such plans — and many health and welfare trusts are already proceeding with this approach. That makes sense since fiduciary obligations apply to plan sponsors and fiduciaries of ERISA retirement plans and health and welfare plans.
Plan sponsors and fiduciaries often rely on service providers to maintain plan records and keep plan information and participant data confidential. According to the DOL, plan sponsors and fiduciaries should select service providers that follow strong cybersecurity practices.
Note that the DOL has issued information and document requests in connection with their audit initiatives that focus on retirement plan cybersecurity practices. This will likely extend to health and welfare plans. Accordingly, ERISA plan sponsors and fiduciaries should review and evaluate how their existing programs measure up to the DOL’s recommendations and develop their cybersecurity programs accordingly.
A summary of the DOL’s guidance to help plan sponsors and fiduciaries meet their obligations to prudently select and monitor service providers follows below.
I. TIPS FOR HIRING A SERVICE PROVIDER WITH STRONG CYBERSECURITY PRACTICES
DOL’s cybersecurity guidance advises plan sponsors to include certain inquiries regarding selecting, evaluating and monitoring processes of plan service providers. These inquiries are summarized below.
A. DOL’s Tips for Sound Due Diligence Regarding A Service Provider’s Cybersecurity Practices
- Ask about the service provider’s documented cybersecurity program, including the service provider’s information security standards, policies and procedures, and audit results and compare them to industry standards used by other service providers.
- Confirm whether and how the service provider validates its information security practices and standards.
- Assess the service provider’s track record in the industry, including public information regarding information security incidents, other litigation, and legal proceedings related to the vendor’s services to address the security incidents.
- Ask whether the service provider has experienced past security breaches, what happened, and how the service provider responded.
- Confirm that the service provider has insurance to cover losses caused by data breaches and cybersecurity-related losses.
II. TIPS FOR CONTRACTING WITH PLAN SERVICE PROVIDERS
A. DOL’s Tips
Make sure that your contract with a service provider:
- Commits the service provider to support a DOL audit;
- Requires ongoing compliance with cybersecurity and information security standards;
- Limits the use and sharing of data (particularly confidential information);
- Requires notice of data breaches or cyber incidents;
- Includes provisions that do not limit the service provider’s responsibility for IT security breaches.
- Requires compliance with privacy, security and data retention laws;
- Requires the service provider to maintain cyber-insurance;
- Provides a right to audit the service provider’s compliance with its information security policies and procedures; and
In light of the DOL’s guidance and audit initiative, plan sponsors and fiduciaries are encouraged to review their cybersecurity practices, as well as their service providers’ cybersecurity programs, to mitigate cybersecurity risks to their ERISA plans.
The attorneys at Day Rettig Martin, P.C. provide a full complement of data breach coaching services to benefit plan sponsors, healthcare providers, and businesses, including data breach notification to individuals and various government entities. In addition, we counsel clients on the creation of information privacy and security plans, gap assessments, breach prevention and the development and implementation of policies and procedures.
If you have any questions about designing and/or administering employee benefit/executive compensation plans, issues arising under information privacy laws such incident responses to data breaches under state and federal laws, or labor/employment practices, please give us a call at (319) 365-0437.
The Iowa Supreme Court has issued an Order revising the Child Support Guidelines. Those revisions take effect on January 1, 2022 and apply to cases pending on that date and thereafter. They also apply to modification of child support orders.
The purpose of the Guidelines is to provide for the best interests of the children by recognizing the duty of both parents to provide adequate support for their children in proportion to their respective incomes. There can be a low-income adjustment for low-income obligated non-custodial parents with the objective of striking a balance between adequately supporting the obligated parent’s children and allowing the obligated parent to live at least at a subsistence level.
There is a rebuttable presumption that the amount of child support calculated under the Guidelines is the correct amount of child support to be awarded; however, that amount may be adjusted upward or downward to provide for the needs of the children or to do justice between the parties under the circumstances of the case pursuant to Rule 9.11. The court may, if appropriate, impute income to a party under Rule 9.11. Any variance must be supported in a written finding by the Court. Child care expenses can play a role in determining a variance but are considered independent of any amount computed by the use of the Guidelines or any other grounds for a variance.
Spousal support, whether paid in the present case or in a prior case, is considered when determining how “gross monthly income” is determined based upon whether the spousal support is subject to income taxation; however, “reimbursement spousal support” will not be added to a payee’s income or deducted from a payor’s income when determining “gross monthly income”.
“Uncovered medical expenses” will be shared by the parties in proportion to their respective net incomes in joint physical care cases. In all other cases the custodial parent is to pay the first $250 per calendar year per child up to a maximum of $800 per calendar year for all children, thereafter the parties pay in proportion to their respective net incomes.
There are still credits given for extraordinary visitation care under Rule 9.9 depending upon the number of overnight visitations taken by the non-custodial parent.
The Guidelines dictate that all parties must file a child support guidelines worksheet prior to a support hearing or the establishment of a support order.
If you have a specific support issue, please contact our office.
Another hot and muggy Linn County Fair is in the books. Local 4-H and FFA members brought their projects for judging, and the public came to view the projects and attractions of the fair. As is the norm, the fair concluded with the livestock auction where this year the participants sold market hogs, sheep, and cattle. Potential buyers began registering at 8:00 am on Monday, June 28, at which time they were treated to a breakfast of doughnuts and other sweet breads. One new feature of the auction was reserving locker slots for the livestock purchased. Either the buyers needed to make arrangement with the locker/processor ahead of time to process the animal, or the seller could reserve a spot. Any animal not kept for processing would be sent to market. Attorney Ron Martin once again attended the Fair and the Livestock Auction. Having grown up on a farm and been a member of 4-H and FFA himself, Ron likes to support the young agriculturalists by participating in the auction. Below is a picture from two of the girls that Day Rettig Martin, P.C. bought livestock from at the auction.
Ron’s law practice includes agricultural and business debt restructuring and commercial matters. If you have any legal questions about your farming or business operation, feel free to call Day Rettig Martin, P.C.
On March 11, President Biden signed the American Rescue Plan Act (ARPA), the government’s most recent $1.9 trillion coronavirus relief bill. According to information provided by the US Chamber of Commerce, there are many things in the new bill to assist struggling small businesses. In particular, the ARPA establishes what is known as the Restaurant Revitalization Fund (RRF) separate and apart from the existing Payroll Protection Program (PPP). This new RRF establishes a $28.6 billion grant program specifically for restaurants and bars. Owners with fewer than twenty locations and whose locations are not owned by the state or local government will be able to apply for RRF grants.
Unlike the PPP where applications are through certain, qualified financial institutions, the RRF program will be administered directly through the Small Business Administration (SBA). There is no official launch date for the RRF program, but restaurant owners interested in applying for an RRF should prepare now by registering with the government using the System of Award Management (SAM) website. SAM registration is required so the government has the necessary information to process RRF applications. Entities not already registered with SAM should:
- Create a gov user account.
- Sign up for a DUNS number which typically takes one to two days to process.
- Using your login.gov account, DUNS number and basic business information you can then register for a SAM account. A SAM account request may take up to two weeks to process.
In addition to SAM account registration, interested restaurant/bar businesses should also prepare financial statements clearly showing a gross revenue loss during 2020 as compared to 2019. You may need assistance from an accountant in preparing this documentation.
Taking these steps now will allow you to take advantage of the RRF program as soon as the application period is announced. Government officials warn that funds for this program may go quickly.
The ARPA also extended the Employee Retention Tax Credit (ERTC) for an additional six months until the end of 2021. The ERTC provides a credit of up to $7,000 per employee per quarter for those small businesses still suffering economic hardships related to the pandemic. Again, in order to qualify for the ERTC, employers must show either:
- A suspension of operations due to governmental orders; or
- A 20% reduction in gross receipts during 2020 over the same calendar quarter in 2019.
Consult your tax advisor about taking advantage of this program.
Finally, on March 17, 2021, the House of Representatives voted to extend the deadline for new PPP applications from the current deadline of March 31 until May 31. This measure now goes to the Senate for approval. Majority Leader Chuck Schumer, D-N.Y. has indicated that Democrats in the Senate want to see this measure approved quickly. A companion to the House Bill extending the PPP deadline was introduced by a bipartisan group of senators including U.S. Senate Committee on Small Business & Entrepreneurship Chair Ben Cardin, D-Md.; Sen. Susan Collins, R-Maine; and Sen. Jeanne Shaheen, D-N.H.
If you have questions about these programs, contact attorney Erica Yoder.
On Wednesday, February 24, the Biden administration announced major changes to the Payroll Protection Program (“PPP”). PPP provides forgivable loans to businesses adversely impacted by the COVID-19 pandemic. The changes announced on Wednesday are designed to benefit and get payroll assistance funds into the hands of small businesses. For a two-week period beginning February 25, 2021 and running through March 10, 2021, the Small Business Administration (“SBA”) will be accepting PPP applications only from small businesses – those businesses with fewer than 20 employees. The SBA is encouraging approved PPP lenders to reach out specifically to minority- and women-owned business, as well as sole proprietorships and independent contractors.
The changes announced on Wednesday also affect how the loan amounts are calculated. Instead of net income, the available loan amounts will be calculated using the applicant’s gross income as shown on Line 7 of Form 1040, Schedule C instead. Applicants are still required to show a twenty-five percent (25%) loss in revenue during 2020 compared to the same calendar quarter during 2019 in order to qualify. For PPP loans of less than $150,000, applicants are not required to provide proof of lost revenue at the time of application. However, proof of lost revenue will be required at the time of loan forgiveness. Applicants for loans of less than $150,000 will also benefit from a simpler, one page loan forgiveness form.
Applicants who were previously awarded PPP funds can apply for a “second draw” loan so as long as they meet the eligibility requirements noted above. According to published reports, there is approximately $143 billion in PPP funding still available.
If your current lender or financial institution does not offer PPP loans, the SBA has a website that matches applicants with approved lenders: https://www.sba.gov/funding-programs/loans/lender-match. More details about the Payroll Protection Program can be found on the SBA’s website: https://www.sba.gov/funding-programs/loans/coronavirus-relief-options/paycheck-protection-program.
There are other programs that might be of assistance to small businesses during these unprecedented economic times such as:
- Economic Injury Disaster Loans: https://www.sba.gov/funding-programs/disaster-assistance/economic-injury-disaster-loans
- Employee Retention Tax Credit: https://www.irs.gov/coronavirus/employee-retention-credit
If you have any questions regarding how this program will effect you or your business, please contact Attorney Erica Yoder
Day Rettig Martin, P.C. welcomes Erica L. Yoder as an Associate Attorney with the firm.
Erica spent more than 14 years as in-house counsel for a large, publicly traded insurance company and 2 ½ years as in-house counsel for a holding company specializing in government contracts and turn around management before opening her own firm in 2017. She brings with her a great deal of experience within the business world. She has a BA degree from Central College, in Pella, Iowa, an MA from Purdue University, and received her JD from the University of Iowa. Growing up active in 4-H and living on a farm in rural Iowa County, Iowa, Erica brings an awareness of farm issues and a strong desire to assist rural clients. Her practice includes business formation and transactions, regulatory compliance, debt/creditor matters, bankruptcy, and estate planning.
Due to the novel coronavirus and it ability to rapidly spread, many normal summer events were canceled this year. The Linn County Fair was one of those events. For the first time since it has been held at the Central City fairgrounds, there was no Linn County Fair. However, there were still 4-H and FFA members who raised their fair projects.
The 4-H/FFA youth continued to learn and apply their knowledge and efforts to gain experience with their projects and were able to “market” their projects with the help of the Linn County Fair Board. A special thanks to Hoge Auctioneering LLC for conducting an “online” auction for the youth. Interested persons were able to view fair projects and contribute to the members by bidding. Day Rettig Martin, P.C. was happy and proud to continue its support of the fair participants and was successful in winning the bids on four entries.
Day Rettig Martin, P.C. has added ribbons from four local 4-H members to its growing collection. As Covid-19 cases in Iowa continue to rise, we are glad to do our part to help our Linn County Community. We are confident that through the efforts of the Linn County Fair Board, the Iowa Extension Service, the youth participants, and caring members of the community, the Linn County Fair will be back next year better than ever.
Earlier this week, Day Rettig Martin, P.C. was the target of a sophisticated fraud scam that attempted to swindle over $150,000 from the firm. A man identifying himself as Charles Gomez contacted our firm through our website seeking legal services. Upon initial contact, he represented that his former employer, Cardinal Health, had wrongfully terminated him in retaliation for reporting wrongful conduct. He further represented that the employer had entered into a severance agreement with him, but had failed to make payment. Our firm assigned an attorney to the matter, and the attorney corresponded with Mr. Gomez and a person identified as a representative of Cardinal Health. The “representative” conceded that the funds were owed, and a few days later the firm received a Fed Ex package with a cashier’s check for the amount that was claimed to be owed pursuant to the written Severance Agreement that Mr. Gomez had provided to us. Immediately after confirming receipt of the check, Mr. Gomez requested the money be wire transferred to a bank account in Mexico. The immediate turnaround of the funds was outside of the firm’s procedures and the attorneys contacted the issuing credit union located in Texas to determine the status of the cashier’s check. The credit union confirmed our suspicions that it had not issued the cashier’s check and would not honor it.
Our firm contacted various federal agencies to report the fraud scam and notified representatives of Cardinal Health. We learned from Cardinal Health that this scam using its name has been running for nearly 2 years. Cardinal Health stated that it is aware of 45 instances of this scam perpetrated nationwide.
This scam was different from other publicized scams in that it did not have the overt “red flags.” Many of the common red flags such as grammar and spelling issues in emails, emails being sent at odd times of the night and morning, and avoidance of providing personal information were absent from our correspondence in this instance. The severance document had the appearance of an actual confidential document, and the e-mail purported to have been sent by the representative of Cardinal Health initially appeared legitimate. Finally, the cashier’s check appeared to be legitimate and the credit union was a legitimate credit union in San Antonio, Texas.
Upon review of the files, we noticed that although the email correspondence appeared to originate from Cardinal Health, the actual domain was “cardinalheathinc.” The Fed Ex package’s “sent address” matched the West Des Moines, Iowa office of Cardinal Health; however, on future investigation it was determined that the packet was sent from Boston. We were able to confirm listings for both the Cardinal Health representative and the purported “client.” Their information was available online.
Our experience shows that law firms are not immune from the efforts of scammers. It is important to remain vigilant for scams, especially in this digital age where it is common for firms to never meet out of state clients. We suggest that everyone, including law firms, remain vigilant. Importantly, while law firms want to assist their clients and turnover funds in a timely manner, they need to verify that they have received “collected funds” prior to disbursing any payment. This is our firm’s first experience receiving what turned out to be a fraudulent “cashier’s check.” We normally consider cashier’s checks to be “collected funds.” Based on this experience we will verify all cashier’s checks in the future as a matter of course.