Category Archives:News

Tax Planning I: Charitable Remainder Trusts

With the Biden administration in power, an increase in taxes may be coming fast. The impact may be on many areas, for example, income tax, capital gain, estate tax, etc. Therefore, proper planning is more relevant than ever. This series reviews some common tax deferral strategies. One such strategy available in many states, including Ohio, is the charitable remainder trust.

             In essence, a charitable remainder trust (“CRT”) is a trust that is funded by an individual (“donor”) during life. The CRT makes distributions to a non-charitable beneficiary, which can be the donor or the spouse, for life or a term up to 20 years. After that, any remaining property may pass to one or more charities. The tax benefit is that when you fund the trust, you can claim a charitable income tax deduction equal to the present value of the remainder interest (subject to applicable limits on charitable deductions). Your annual payouts from the trust can be based on a fixed percentage of the trust’s initial value — known as a charitable remainder annuity trust (CRAT). Or they can be based on a fixed percentage of the trust’s value recalculated annually — known as a charitable remainder unitrust (CRUT). CRUT may be preferable for some people because it allows the income to keep up with inflation. Also, a donor can make additional contributions.

The IRS requires that the present value of the remainder interest must be at least 10% of the initial value of the trust assets. This determination is made at the time the assets are transferred (it’s an actuarial calculation based on the trust’s terms).

The benefits of a CRT are:

  • Fixed income for life
  • Avoid capital gains tax on the sale of your appreciated assets
  • Charitable income tax deduction for remainder portion of your gift

An example (illustrated at Ohio State University website)

Susan, 75, wants to make a gift to The Ohio State University Foundation but would also like more income in the future. Susan creates a charitable remainder unitrust with annual lifetime payments to her equal to 5% of the fair market value of the trust assets as revalued annually. She funds the trust with assets valued at $500,000.

Susan receives $25,000 the first year from the trust. Subsequent payment amounts vary each year depending on the annual valuations of the trust assets. She is eligible for a federal income tax charitable deduction of $299,845* in the year she creates and funds the trust. This deduction saves Susan $95,950 in her 32% tax bracket.

*Based on a 1.2% charitable midterm federal rate. Deductions and calculations will vary depending on your personal circumstances.            

Charitable Remainder Trusts requires careful planning. Before you act, please discuss your options with us at 440-835-2271 or your trusted attorney/CPA.

EB-5 Program Revived: U.S. District Court Restores $500,000 Investment

The U.S. District Court of the Northern District of California decided on June 23rd, 2021 to rule in favor of its request to vacate the EB-5 Modernization Rule implemented by the Department of Homeland Security (DHS) in 2019. The court’s decision restores the original rules for the EB-5 program, which was created by the Immigration Act of 1990 as a method for providing qualified investors the opportunity to obtain a permanent green card. The program requires a minimum $500,000 investment in a U.S. business that would create at least 10 full-time jobs for American workers. The 2019 Modernization Rule bumped the investment from $500,000 to $900,000, an update that stifled participation in the program. The suit was brought by Behring Co., a real estate developer and the operator of Behring Regional Center.

               The Modernization Rule also made problematic changes to the program’s Targeted Employment Area (TEA) designation process, removing the states’ authority to determine TEA eligibility without a viable replacement and resulting in processing times that took years to complete. This change helped contribute to EB-5 petitions dropping by more than 99% percent since November of 2019. “The Court’s decision to right this wrong will provide a positive opportunity for EB-5 investors and regional centers to unite with policymakers in forging meaningful legislative change that ultimately leads to creating American jobs and economic growth”, said Laura Foote Reiff, an immigration attorney who helped represent Behring Co.

With the original rules in effect, EB-5 investors may once again invest $500,000 in TEA-qualified locations that create at least 10 full-time jobs. Since its inception, EB-5 investor have injected more than $41 billion and created over 820,000 jobs. However, the program is set to expire June 30th, with lawmakers currently considering modifying certain components of the EB-5. If you have any immigration issues or would like to try and apply for the EB-5 program, feel free to call the Lei Jiang Law Firm at 440-835-2271, as we handle a variety of immigration legal issues and applications. 

Employment Law Uniformity Act: What Does it Mean for Ohio Businesses?

Ohio Gov. Mike Dewine signed H.B. 352 into law earlier this year and it went into effect April 15th, 2021. Also known as the Employment Law Uniformity Act, it will enact broad changes to how employment discrimination claims are handled in Ohio. The legislation is meant to improve the business climate in Ohio, as well as draw more investment into the state.

Major Changes

Smaller caseload- One big change that H.B. 352 implements is that plaintiffs with discrimination claims will first go to the Ohio Civil Rights Commission instead of going right to court. This will help lessen the burden the employer usually faces when having to deal with court battles and hearings with the Ohio Civil Rights Commission.

Statute of Limitations amended- Before H.B. 352, an employee had up to six years to pursue a civil claim for discrimination and 180 days to go before the Civil Rights Commission. Now, a two-year statute of limitations applies to all charges filed with the commission and civil lawsuits. The new law tolls the statute of limitations for civil lawsuits until the Civil Rights Commission completes its investigation. This will ease the recordkeeping burdens that businesses often carry and will create more reliable witnesses, as they will have a fresher memory of the event if it only happened within the last couple of years.

Affirmative defense- H.B. 352 codifies the federal Faragher-Ellerth Defense. According to Thomson Reuters Practical Law, this is an affirmative defense employers can use to defend against claims of hostile work environment harassment if: No tangible adverse employment action was taken against the plaintiff, the employer exercised reasonable care to prevent and promptly correct the harassing behavior and the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm by, for example, not taking advantage of reporting procedures outlined in an anti-harassment policy.

What Does This Mean for Ohio Business Owner?

If you are a business owner, update your human resources department about the new law. If a former employee or current employee accuses you of discrimination, make sure to tell your IT department or employee to retain all communications and emails having to do with the subject of the lawsuit. Furthermore, make sure to hire experienced representation, like Lei Jiang Law Firm, as we are well versed in labor and employment disputes. If you have such an issue, please contact us at (440) 835-2271.

A SUCCESSFUL COMPLETION OF A WAGE CASE

After near a four-year litigation, a wage case in the US District Court Northern District of Ohio was recently settled to our client’s satisfaction. T. Wang v. China Wok, et al. Case number 3:17-cv-00691 was filed on April 3, 2017. Our firm represented Plaintiff Ms. Wang. The original complaint was subsequently amended and supplemented. Additional parties were added as defendants. Ms. Lei Jiang was the lead counsel in this case.

The case was at the final stage – waiting for the trial when it was settled. All discovery was completed, and summary motions were filed and determined by the court. Due to COVID, the trial was delayed. Unexpected delay eventually facilitated the settlement. This is a good result for all parties involved because there will be no appeals.

Labor and employment disputes are one of our areas. If you have such issue, please contact us.

© 2021 Copyright by Lei Jiang LLC. All rights reserved.

SUCCESS IN FOUR CIVIL CASES in 2021

We started year 2021 with 4 winning cases. CV-19-925835 and CV-20-930311 are two companion cases in Cuyahoga Common Pleas Court filed by a plaintiff against our client, a defendant.  CV-19-925835 was filed on November 26, 2019. Plaintiff alleged breach of two contracts. Based on evidence, we quickly filed counterclaims against the plaintiff and a third-party complaint against plaintiff company’s owner. Evidence showed that the lawsuit was frivolous. More appalling, Plaintiff filed second suit against our client on March 3, 2020 with similar claims.

Plaintiff filed numerous motions to distort, delay and/or disrupt the cases, most of them were meritless. In a short period of one year during the global pandemic, a total of 46 motions/briefs were filed (21 in CV-19-925835 and 25 in CV-20-930311), not to mention many other documents, pleadings, and hearings.  This was extraordinary. Yet, our defense team defeated and dissolved all these baseless motions.

In the end, Plaintiff ran out of gas and tricks. On March 26, 2021, Plaintiff voluntarily dismissed all claims against our client in these two cases. Thus, our client achieved final success and was satisfied with our representation.

We also defended our clients in two other cases and obtained measurable success. 20CV000003 is a civil case in Lake County Common Pleas. This was another highly contested case (if not more) involved the same entity in above two Cuyahoga cases (plaintiff there). Approximately 53 motions/briefs were filed in one year. Types of motions filed by this entity (third party defendants here) included but not limited to

  • Motion to disqualify defense counsel
  • Motion to reconsideration
  • Motion for extension of time
  • Motion to compel discovery
  • Renewed and amended motion to disqualify
  • Motion for protective order
  • Motion to strike
  • Motion to dismiss
  • Substituted motion to strike
  • Motion for non-prejudicial dismissal under doctrine of forum non conveniens
  • Motion to continue
  • Motion in limine
  • Motion for leave to file sur-reply

We defeated all these motions and obtained a success for the client.

The fourth case was in Cleveland Height Municipal Court where our client, a defendant, prevailed after the trial. Case number is CVI2001426.

Big or small, plaintiff or defense work, we handle the cases with the highest level of care, professionalism and skill. If you have a business dispute, please contact us for help. 

© 2021 Copyright by Lei Jiang LLC. All rights reserved.

OHIO ADOPTS NEW LIMITED LIABILITY COMPANY ACT

On January 8, 2021 Ohio Governor Mike DeWine signed into law the Ohio Revised Limited Liability Company Act (the “New Act”). The New Act completely replaces the existing Ohio Limited Liability Company Act (Chapter 1705 of the Ohio Revised Code) with new Chapter 1706 of the Ohio Revised Code. The New Act significantly updates Ohio’s LLC law, providing increased opportunities and flexibility. This could make Ohio a potential favorable home for an LLC.

Effective Date is April 12, 2021. Applicable date is January 1, 2022.

Important Changes:

• Default Nature: The New Act emphasizes that its contents are generally “default” provisions — applicable only to an LLC that has not adopted an operating agreement with contradicting terms. This gives business-owners and investors greater flexibility to design an LLC.

• Flexible in Governance Structure: The New Act allows an LLC to be managed by member or manager. This allows an LLC to set up a governance body more akin to that of a for-profit corporation or partnership, such as a board of directors or an oversight committee.

• Ability to Eliminate Fiduciary Duties: The New Act permits an LLC to limit or eliminate entirely all fiduciary duties of members, managers, and officers. The only non-waivable fiduciary duty is the implied covenant of good faith and fair dealing. This has many implications in structuring and liabilities.

• Penalties for Failure to Perform: The New Act permits an LLC to set forth specified penalties and consequences in its operating agreement that will apply if a member breaches the operating agreement or upon the occurrence of a certain event. Business-owners should take note of this drafting flexibility as it allows them to contractually penalize certain actions and maintain control.

• Ability of Operating Agreement to Confer Rights to Person Without Economic Interest.

• Series of Limited Liability Companies: This is a drastic change. The New Act allows an LLC to establish “series” in which the assets of each series are protected from claims against and liabilities incurred by another series or the LLC as a whole. This aspect is very useful in the context of investment funds.

• Protections Against Creditors of Members: The New Act also allows an LLC to protect itself from any claims by creditors of a member, including situations where a creditor claims a security interest in a member’s interest in the LLC.

Please contact Lei Jiang law firm to update your LLC legal documents for these new ammunition and protection from the law. 

© 2021 Copyright by Lei Jiang LLC. All rights reserved.

Patent Prosecution and Litigation 2020

Over the years, our firm has prosecuted many patent applications and successfully secured patents for many clients. 2020 is a busy year with many applications have been filed. We also see allowances issued to our clients as a result of years’ work. Here is one of the patents secured by our law firm, it was granted in May 2020. The prosecuting attorney is Ms. Lei Jiang.

Click to view full image.

Click to view full image.

This particular application is a PCT application, meaning that the application was submitted through Patent Cooperation Treaty. The applicant must be a national of a PCT contracting State (a member country). There are about 150 contracting states including most major countries. This type of applications is the most complex one. There are other type applications, such as

  • Provisional application
  • Utility application
  • Design application
  • Plant application

Our firm handles prosecution of all patent applications. It is always a great honor to practice law in front of the United State Patent and Trademark Office (USPTO). USPTO is one of the most efficient and courteous government offices in this nation.  

On patent litigation side, COVID-19 may have slowed down many economic activities, but it hasn’t slowed down patent litigation. The infringement litigation in the first half of 2020 was up by 16% according to the National Law Journal. Also, the battleground has shifted. In 2019, Delaware had the most patent cases, but in 2020, West Texas leaped ahead with the most filings. Thus, the Western District of Texas is now entrenched as the most popular filing destination for infringement cases. This trend started when U.S. District Judge Alan Albright joined the bench in 2018.

Whether you need a patent for your idea/invention or defend your patent rights, we can help. For questions, please contact us.

© 2020 Copyright by Lei Jiang LLC. All rights reserved.

2020 Business Valuation – A Recent U.S. Case

The U.S. Department of Labor recently prevailed in a district court of Virginia case involving multiple Employee Stock Ownership Plan (ESOP) valuation issues.

The case involved allegations that the selling shareholder, who was also a fiduciary of the employee stock ownership plan, as well as the bank hired to represent the ESOP as an independent fiduciary, breached their fiduciary duties by allowing the plan to overpay for the shareholder’s stock.

The district court issued a lengthy ruling on the case which addressed multiple common valuation practices such as normalization adjustments, discounting, capitalization rates and proper look-back periods for the purposes of capitalization. For example, the Court found that

– The conclusion of value was strikingly close to an initial estimated value that had been floated by ESOP counsel and advisors at the inception of the transaction;

– The appraisal was performed on a controlling basis even though the seller/owner and his wife were still going to be two of three ESOP co-trustees and occupy two of three company director seats;

– Almost of all of the appraiser’s assumptions, including his capitalization rate, fluctuated significantly relative to previous appraisals that he had performed on the company and all in a direction towards a conclusion of higher value;

– The appraiser did not obtain financial projections or prepare his own and get management buy-in and the appraisal utilized only a capitalized cash flow method to the exclusion of a discounted cash flow method(discounted cash flow method); and

 — The ESOP trustee raised many concerns with the draft appraisal but did not follow through and then went ahead and agreed to a purchase price before reviewing the final appraisal.

This case remind us that (1)  much discussions were needed to justify the departure from previous yearly valuations and big rise of stock value, (2) an impartial review of the valuation results might have red flagged the flaws, (3)  the fiduciaries would have been wise to remember that fiduciary duties imposed by ERISA are “the highest known to the law” and any decisions made in fiduciary capacity should have been made with an “eye single to the interests of the participants and beneficiaries.” (4) a genuine negotiation with respect to the purchase price should be conducted.

Lei Jiang Law Firm handles many aspects of business transactions. For questions, please contact us. © 2020 Copyright by Lei Jiang LLC. All rights reserved.

Civil Litigation - Important Changes to Ohio Rules of Civil Procedures

Recent amendments to the Ohio Rules of Civil Procedure will unify the timeline of court proceedings throughout the state.  For example, Ohio now has uniform motion deadlines to streamline processes.  The amendments became effective July 1, 2018 and serve to eliminate confusion regarding deadlines and other requirements.

Here are some of the specifics. For Motions for Summary Judgment, all responses are due 28 days after service of the motion, and replies are due 14 days after service of the response.

For all other motions, responses are due 14 days after service of the motion, and replies are due 7 days after service of the response.

Motions for purposes of trial, such as a motion in limine, must be filed at least twenty-eight days prior to the trial, while motions for purposes of a hearing must be served no later than fourteen days prior to the hearing.  Importantly, Rule 6 allows courts to modify the summary judgment and motion deadlines for good cause.

Discovery rules are also updated due to advancements in technology. Rule 33, 34, and 36 now state that the discovery must serve an electric copy on a shareable medium in an editable format.  These changes should result in a more streamlined and effective system. 

For legal issues, please contact us.

© 2020 Copyright by Lei Jiang LLC. All rights reserved.

Civil Litigation in 2020

The Supreme Court of Ohio issued an order effectuating and expanding upon the emergency legislation Governor DeWine signed into law on March 27, 2020 in response to COVID-19, which tolled statutes of limitations, as well as litigation deadlines and timelines.  The Court’s order reflects the judicial branch’s reciprocation of H.B. 197 legislation and orders that all “time requirements” that are set to expire between March 9, 2020 and July 30, 2020 are tolled.  In effect, the order tolls all litigation deadlines that are due March 9 through July 30.

The order does allow for a court to supersede the tolling provision by issuing an order of its own on or after March 9, 2020.  Some courts, however, seem to be determined to press ahead due to concerns of unmanageable heavy case load down the road. Overall, the progress of civil cases is slowed in light of the pandemic.

Firmwide, we see no decrease of civil cases in 2020.  Five breach of contract cases alone came in before April 2020. Civil litigation is a big part of our practice. Our core substantive practice areas of corporate, business, real estate, international, and intellectual property often involve complex disputes that must be resolved in federal court. As a result, we have developed expertise capable of handling the most significant matters. 

In a civil litigation, we handle matters from pre-complaint investigation, through discovery, summary judgment, trial, and the appeals process. We are experienced yet small enough to ensure that client service remains at the forefront of every engagement. So, if you are burdened by business disputes, let us help you. For legal issues, please contact us.

© 2020 Copyright by Lei Jiang LLC. All rights reserved.