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Articles by Scott Sinder
'Wellness' Doesn't Come Tax-Free
Scott A. Sinder’s articles from Steptoe LLP are most popular: in United States with readers working within the Healthcare, Technology and Pharmaceuticals & BioTech industries Three years ago, we warned in a Leader’s Edge column that payments to employees under some “wellness” or “medical indemnity” plans do not satisfy applicable Internal Revenue Service (IRS) requirements to provide promised payroll tax savings for employers or their workers.
White House Releases National AI Policy Framework As Congress Weighs Competing Legislative Paths
SJ Steptoe LLP More In more than 100 years of practice, Steptoe has earned an international reputation for vigorous representation of clients before governmental agencies, successful advocacy in litigation and arbitration, and creative and practical advice in structuring business transactions. Steptoe has more than 500 lawyers and professional staff across the US, Europe and Asia.
From Global Warming To Compliance Warning: CARB's Preliminary List Of Covered Entities And Impending Deadlines Raise The Heat For Compliance With California's Climate Disclosure Laws
Steptoe LLP are most popular: within Transport, Accounting and Audit and Immigration topic(s) As federal climate disclosure efforts stall, California is forging ahead with two landmark laws—SB 253 and SB 261—that impose sweeping climate-related reporting obligations on large companies (we've previously detailed the laws here).
The Good, the Bad, and the Ugly September
Thanks to the legislation, most key 2017 Tax Cuts and Jobs Act (TCJA) provisions that were set to expire at the end of the year are permanent, including the suite of individual tax payment changes (lower marginal tax rates, increased standard deductions, and the increased child tax credit). As with most every new law, OBBBA comes with upsides and downsides. What happens next might not be pretty.
No Rest for the Weary
The stay is in response to an ongoing litigation challenge filed by the ERISA Industry Committee (ERIC) alleging the rule exceeds statutory authority and imposes burdensome requirements. While the stakeholder agencies have indicated that they will take a more comprehensive review of mental health parity enforcement, including potentially rescinding the final rule, group health plans and carriers should remember that the underlying parity requirements remain firmly in place.
The New Fiduciaries
In healthcare, frustrated state policymakers seeking to bring down costs for consumers and to get their arms around some of the more opaque segments of the ecosystem have leapt onto the fiduciary duties bandwagon. The web of common law and statutory fiduciary duties is already complex and only seems to be growing. A key question, then, is who should be caught in it? First, some history and legal background.
New York Cybersecurity Obligations Expand
The 2023 amendments made a series of material changes to the obligations the regulations impose on “covered entities” (essentially all firms licensed by the NYDFS) to maintain a cybersecurity program designed to protect the confidentiality, integrity, and availability of their information systems and non-public information stored on those systems. If this seems like old news, think again, because some of the more significant changes must be implemented this year.
The Budget Hawks Are Circling
A similar, if less expensive, dilemma could be developing on healthcare spending. The enhanced Affordable Care Act (ACA) subsidies first enacted in the 2021 American Rescue Plan Act and later extended in the 2022 Inflation Reduction Act also are set to expire at the end of 2025. The Congressional Budget Office (CBO) estimates that it would cost $335 billion to extend those subsidies for another 10 years. Many Republicans oppose extension.
Tax Reform and Reconciliation
Section 199A tax benefits for pass-through entities like S-Corps and LLCs, and Section 163(j) caps on business interest deductibility. Extension of those expiring provisions will dominate the public policy debates in Washington for the next four to six months. While Republicans control both the White House and Congress, the legislative majorities are narrow enough to garner usage of the same procedural mechanism they used to enact the TCJA in 2017—reconciliation.
States not Slowing This Year
But, of course, a lot of our industry’s fate lies with the states. Unlike their federal counterparts, state policymakers can move fast and often without cross-party compromises. This makes the state policy arena more interesting, sometimes more productive, but always riskier. What might the states throw at us in 2025? First, let’s level set on the political landscape. And “level” might be just the word for it.
The 2025 Agenda | Leader's Edge Magazine
One area of continuing frustration for Council members that we hope to address next year is the confusion and inefficiency that remain prevalent in states’ insurance producer licensing. Multiple measures in the last 30 years helped drive states toward licensing uniformity.
Is TCPA A Four-Letter Word?
One of the plaintiffs' class action bar's favorite play toys is the federal Telephone Consumer Protection Act of 1991(TCPA), which imposes a host of requirements and constraints on telephone calls and text messages made on behalf of a business both to other businesses and to consumers. Plaintiffs are entitled to receive $500 to $1,500 in statutory damages for each call placed in a manner that violates any of the Act's requirements.
Is TCPA a Four-Letter Word? | Leader's Edge Magazine
Plaintiffs are entitled to receive $500 to $1,500 in statutory damages for each call placed in a manner that violates any of the Act’s requirements. Those damages can be aggregated across a class and the Act does not cap the amount a defendant must pay for TCPA violations in any way. Presumably for that reason, recent TCPA class action settlements have averaged almost $7 million per case, according to a September 2024 CRC Group report.
As One Door Closes, Another Opens
Judge Ada Brown of the Northern District of Texas ruled that the FTC’s actions in developing and proposing the rule were arbitrary and capricious. Although the FTC is expected to appeal the decision, we do not expect the rule to be revived. That’s the good news. Non-compete agreements, however, remain under attack.
Grappling with the Supreme Court’s Chevron Doctrine Ruling
Over the last few decades, a wide array of politically appointed federal agency officials from both sides of the political divide have responded to congressional paralysis by increasingly extending and reinterpreting the scope of their regulatory authority in order to effectuate a wide range of public policy objectives.
AI Chalk Lines Are Being Drawn
In the insurance industry, AI is used in underwriting, customer service, claims processing, marketing, and fraud detection. While AI brings many benefits, it also presents legal and regulatory challenges.
Another Battle in the War on Non-compete Clauses
The rule is scheduled to go into effect on Sept. 4 of this year. Before parsing the details of the rule, two caveats are essential. First, the rule is going to be struck down. It will in all likelihood never even go into effect. The first lawsuit challenging the rule, from Texas tax services firm Ryan LLC, was filed on the day it was issued; the U.S. Chamber of Commerce filed its lawsuit against the rule the following day.
American Privacy Rights Act: An Overview Of The Landmark Privacy Legislation Being Considered By Congress
In April, Senate Commerce Committee Chair Maria Cantwell (D-WA) and House Energy and Commerce Committee Chair Cathy McMorris Rodgers (R-WA) jointly released the text of the American Privacy Rights Act (APRA), a draft piece of legislation to establish a federal data privacy standard. The bill expands on last session's American Data Privacy Protection Act (ADPPA), which passed the House Energy and Commerce Committee in 2022.
The SEC’s Climate Disclosure Rules Go to Court
Years in the making, the disclosures are intended to provide public information on how companies are being financially impacted by climate-related risks and how they are addressing the risks, according to the SEC. The rules were scheduled to take effect on May 28. Within a few hours of their release, 10 state attorneys general filed the first challenge to the final rules in the U.S. Court of Appeals for the 11th Circuit.
Increased Expectation and Exposure for Plan Fiduciaries
Last month, a class action lawsuit was filed against drugmaker Johnson & Johnson and its benefit plan committee in the United States District Court for the District of New Jersey.
The SEC Adopts Final Rule For Climate-Related Disclosures: Significant Disclosure Obligations Are On The Horizon
On March 6, 2024, the US Securities and Exchange Commission (SEC or Commission) adopted final rules to require registrants to disclose certain climate-related information in registration statements and annual reports. The final rules reflect the culmination of a nearly two-year rulemaking effort at the SEC, which garnered an unprecedented level of public engagement and political attention, with more than 24,000 comments filed.
Crucial Details on the Corporate Transparency Act
The BOI disclosures are intended to impede illicit actors from using shell companies to conceal the proceeds of illegal activities. Their reach will be far more extensive, though, as an estimated 33 million entities are subject to the new BOI regime including, undoubtedly, many of your clients. Many of you have also asked us whether your brokerage firms are subject to the BOI reporting obligations and, if so, what you will need to do to comply.
Toppling the Reign of Regulation
The proposed rule would require agents and advisors selling such products to act in the “best interests” of their clients, a standard to which they already are subject under the NAIC’s model annuities sales act (which has been adopted by 41 states to date) and the SEC’s “best interest rule.” DOL’s proposed rule also would require agents and advisors selling retirement investment products to inform customers that they are “fiduciaries” (thus creating private rights of action under state law...
IRS Cracks Down on Employee Retention Credit
Robocalls and television ads promise up to $26,000 per employee for businesses that were affected by COVID-19. Perhaps your firm or one of your key clients claimed the ERC based on one of these ads or after consulting with a tax professional. While you (or your client) may not have anticipated it, you (or they) are now in the IRS’s sights.
Rowing the ESG Rapids
The latest chapters in the saga—in June, the United States Supreme Court issued its decision in Students for Fair Admissions, Inc. v President and Fellows of Harvard College, in which the Court held that the consideration of race by Harvard and the University of North Carolina as a “plus” factor in their college admissions processes violates the U.S. Constitution’s 14th Amendment Equal Protection Clause.
Wildfires Heat Up Regulator Discussions
According to the “National Fire News,” 42,124 wildfires have burned over 2.1 million acres of land in the United States since January. Smoke from the massive fires in northern Canada infected wide swaths of the midwestern and eastern United States. And Europe saw more than 988,000 acres destroyed by forest fires this year. The wildfire issue dominated many of the industry discussions throughout the summer.
Three Months That Almost Killed the Nevada Insurance Markets
This spring, the insurance industry got to experience a good swath of those thrills firsthand. On March 24, a four-line bill was introduced in the Nevada Assembly: AB 398, which generally bars the inclusion of defense costs within the coverage limits of a “liability insurance” policy. Less than a month later, on April 21, the bill was passed by the Nevada Assembly. The Nevada Senate passed the bill on May 26, and the governor signed it into law on June 3.
Two States Join Non-Compete Prohibition Party
Could New York become first not to exempt business sales from bans? By Scott Sinder, Ashelen Vicuña Posted on July 17, 2023 The permissibility of using non-compete agreements continues to be a hot topic with both state legislators and federal regulators. The primary concern is the perceived abuses of the growing use of such agreements for hourly and other lower-income wage earners. Insurance agencies and brokerage firms are not the target of any such lower-income wage earner abuse concerns.
Privacy in the Spotlight Once Again
The NAIC president is targeting year-end for a consumer privacy model law. By Scott Sinder, Cari Lee, Ashelen Vicuña Posted on May 28, 2023 The NAIC spring meeting began with an unexpected announcement that Mike Consedine was stepping down as CEO effective April 30. Consedine has served in that role since January 2017. NAIC general counsel and chief operating officer Andy Beal will serve as the interim CEO as the NAIC searches for Consedine’s replacement.
SECURE 2.0 | Leader's Edge Magazine
New tools can address old retirement-savings problems. By Scott Sinder, Ashelen Vicuña Posted on April 30, 2023 The United States has a significant retirement savings problem. According to a study by the Urban Institute, almost 40% of millennials born in the 1980s will not have sufficient income at age 70 to maintain their pre-retirement standard of living.
State of Play | Leader's Edge Magazine
NAIC preps for 2023, and NIPR works toward digital future. By Scott Sinder, Cari Lee Posted on December 1, 2022 Election 2022 is (almost) behind us. And while major prognosticating on the impact of the election outcomes can wait for a later date, one thing is certain: the election should not impact the governance of the National Association of Insurance Commissioners in the near term, as all of the current NAIC officers will retain their state office.
Fee Fi Fo Fum! | Leader's Edge Magazine
New initiatives could have giant carriers collecting broker fees, but beware the regulatory perils. By Scott Sinder Posted on April 11, 2012 The Patient Protection and Affordable Care Act is beginning to change the health insurance market landscape. Given the act’s requirements, some of the changes, such as the elimination of annual and lifetime coverage limits for “essential benefits,” were wholly predictable.
The Emerging World of ESG Climate Disclosures
If the SEC’s proposed rule is finalized, the challenges will come quickly. By Scott Sinder Posted on November 1, 2022 At a recent hearing in the Senate Banking Committee, ranking member Pat Toomey (R-Pa.) asserted that federal regulators and asset managers have the power to sway banks on issues like climate change and lending to oil and gas companies. Jamie Dimon, chair and CEO of JP Morgan, retorted, “Speaking for myself, [the regulators] are my judge, my jury and my hangman.
Cyber Compliance
A new questionnaire should help with oversight of third-party service providers. By Scott Sinder Posted on September 29, 2022 This past summer, The Council and the American Property Casualty Insurance Association finalized a model questionnaire that can be used by carriers to evaluate the potential cyber-security exposure posed by the agencies and brokerage firms with which they work.
Dobbs Revisited | Leader's Edge Magazine
Can an employee assistance program be used to provide abortion travel benefits? By Scott Sinder Posted on September 1, 2022 What is an employee assistance program anyway? That question plagued me when I wrote last month’s column outlining some initial thoughts regarding the political and legal implications of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade.
Post Roe: More Questions Than Answers
Many of those questions relate to the provision of reproductive-rights related benefits under group health plans. By Scott Sinder Posted on June 29, 2022 As you assuredly know by now, on June 24, the United States Supreme Court issued its long-awaited decision in Dobbs v. Jackson Women’s Health Organization and ruled 6-3 that having an abortion is not a fundamental constitutional right.
New Leaders with New Visions
The NAIC and The Council have new state insurance leadership. By Scott Sinder, Cari Lee Posted on May 31, 2022 I don’t know about you and your firm, but I feel like I have been at the epicenter of the Great Resignation. As sad as I was to see some (but not all) of my now former colleagues depart, I also am excited about those who have joined us in their wake. Cari Lee is at the top of that excitement list. She joined us a year ago and now serves as The Council’s director of state government affairs.
ESG Reporting | Leader's Edge Magazine
Is opportunity knocking? By Scott Sinder, Ashelen Vicuña, Elizabeth Cassady Posted on May 1, 2022 We are at an inflection point. To date, especially in the United States, disclosures related to a company’s climate-related risks primarily have been voluntary.
The World at (Economic) War
You and your clients may have stakes that are subject to sanctions or are compensable under international law. By Scott Sinder Posted on March 21, 2022 Tomorrow, just you wait and see. There'll be love and laughter. And peace ever after. Tomorrow, when the world is free. — “The White Cliffs Over Dover” by Vera Lynn (widely cited as the most popular song of the WWII Era) Sometimes, writing this column is a bit tricky when covering fast-moving events.
Unlikely Partnerships
We promise to spare you the history of reinsurance and share only this: reinsurance as we know it dates to the 19th century, spurred by a large fire in Hamburg, Germany. Industrialization throughout the 1800s created large concentrations of risk and required insurers to diversify their exposures. In response, insurance companies designed new programs to limit liability on specific property and casualty related risks and to stabilize loss experience.
Health Plan Reporting
You have new rules to comply with and a call to (PBM) action. By Scott Sinder, Ashelen Vicuña Posted on January 5, 2022 By now, all of you who touch the group benefits side of our business are painfully aware of the new Consolidated Appropriations Act of 2021 Section 202 transparency obligations. As of Dec.
OSHA Has Spoken, Now It’s Up to the Courts
The new employer COVID-19 vaccination/testing mandate raises questions. By Scott Sinder, Ashelen Vicuña Posted on November 8, 2021 Let’s start with this admission, which I know will not sit well with some of you: I am a COVID-19 vaccination zealot. I believe that everyone who can get the vaccine should get it. I also believe that employers should impose vaccination mandates on their workforces in large part to protect and support those who have chosen to be vaccinated. On Nov.
OSHA Has Spoken, at Least for Now
The new employer COVID-19 vaccination/testing mandate raises questions. By Scott Sinder, Ashelen Vicuña Posted on November 8, 2021 Let’s start with this admission, which I know will not sit well with some of you: I am a COVID-19 vaccination zealot. I believe that everyone who can get the vaccine should get it. I also believe that employers should impose vaccination mandates on their workforces in large part to protect and support those who have chosen to be vaccinated.
The Vaccination Conundrum
Regulators weigh in. By Scott Sinder, Ashelen Vicuña Posted on October 19, 2021 The great COVID-19 vaccination debate continues. Slowly but surely, however, federal regulators are clarifying the legal parameters around asking for evidence of and requiring vaccinations in the workplace.
To Pay or Not to Pay: Is That the Question?
Blanket ransomware payment prohibitions are counterproductive to improved cyber coverage. By Scott Sinder Posted on September 30, 2021 We are on the heels of the 20th anniversary of 9/11, and many of us lived the Terrorism Risk Insurance Act debates that followed. The widely shared expectation at the time was that 9/11 was just the first of what we thought would be a long litany of terrorist events on U.S. soil.
EO, EO, It’s Off to Work We Go
Here are three ways Biden’s “promoting competition” executive order would directly impact our industry. By Scott Sinder Posted on August 31, 2021 Presidential executive orders fascinate me, with their interesting mix of actionable items and political rhetoric—the rhetoric oftentimes blurring the line between the two. President Trump issued 220 during his term in office, an average of 55 per year.
Let’s Capitalize on Data Transparency
The No Surprises Act boosts transparency in data, which we can use to our advantage. By Scott Sinder, Chelsea Gold Posted on July 13, 2021 While the Affordable Care Act has been the law of the land for over a decade, it continues to face both legal and policy challenges. Just last month, the Supreme Court issued its third opinion rebuffing constitutional challenges to the law.
Diversity, Equity, and Rebating
The NAIC and NCOIL meetings brought two noteworthy agenda items to the fore. By Scott Sinder, Kate Jensen Posted on June 1, 2021 The National Association of Insurance Commissioners (NAIC) and the National Conference of Insurance Legislators (NCOIL) recently wrapped up their respective spring meetings—the NAIC still virtual and NCOIL braving it in person. The pandemic forced most of their work to a standstill, and these meetings really were focused on ramping back to regular order.
Licensing Specter Haunts Europe
Let’s break down this emerging flashpoint in a post-Brexit world. By Scott Sinder Posted on May 2, 2021 The European Union is undoubtedly one of the most momentous mergers in history. The success of many (most?) mergers is dependent on a well-executed integration plan. Full integration of the EU’s members is, however, likely to be perpetually incomplete, with Britain’s exit from the union perhaps evidence of that failed integration. It clearly is one of the greatest merger failures of our era.
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