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| Valuing Your Business after PPP |
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by Champe Fitzhugh 2020 was not the greatest year for small and mid-market private M&A. At least if you do not count asset purchases for book value or deals out of bankruptcy. For the companies that navigated through the year, green shoots are emerging. Anecdotally, interest in acquisitions and consolidations are picking up. There remain a couple of interesting issues relating to valuation, which I am seeing in a couple of deals right now: what do you do with 2020 revenue and PPP forgiveness when you are valuing your business?
If you received at least one PPP loan under the $2MM heightened scrutiny threshold then you may be in the enviable position of having had the PPP loan forgiven already. If you had one or more PPP loans that exceeded that threshold, you probably are still waiting. In either case, where does the PPP money sit when an outside party is evaluating your business for a potential acquisition? And what happens at closing if your loan hasn’t yet been forgiven?
If the PPP loan is forgiven, it’s a one-time event increasing revenue. That’s the sort of event that can be evaluated fairly easily. But if you also managed to navigate the pandemic semi-successfully, and were able to both demonstrate that you properly received and used the PPP loan and also that you had proceeds leftover that were used to increase equity or pay off debt, you may credibly argue that the value of your business increased and that PPP loan proceeds should not fully be removed from the valuation of your business. Even if it doesn’t show up in your valuation, it might still show up in proposed earn-out structures as part of the metric used to determine future targets. Read More... |
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| Want to Quickly Sign your Name? It Could Cost You |
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by Patrick Hayes Signing your name on any sort of document is commonplace, whether it be a contract, a promissory note, or even a credit card receipt. However, last year a Texas Appeals Court issued a ruling that should serve as a reminder to everyone not to be too relaxed when signing your name.
In Zentech, Inc. v. Gunter, the President of Zentech, Ramesh Maini, signed two promissory notes in the designated “Borrower” space, but failed to indicate he was signing the Notes in a representative capacity. Maini missed one simple step, but this mistake could have cost him significantly more than his legal fees to have this verdict overturned. S. Rao Gunter originally filed a suit against both Zentech and Maini, in his individual capacity, for the payment of two promissory notes for a total of $730,169 due. The trial court decided Zentech and Maini, in his individual capacity, were both responsible for the $730,169 and interest. Luckily, for Maini, the Texas Court of Appeals did not completely agree. Read More...
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| Best Lawyers in Texas |
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Andrews Myers, P.C. is pleased to announce that ten attorneys across five practice groups have been named in the 2021 Edition of The Best Lawyers in Texas, and five young attorneys were recognized in the inaugural listing of “Ones to Watch.” Additionally, Ben Westcott was further recognized as the 2021 “Lawyer of the Year” in Houston for his work in Construction Law.
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Using information excerpted from the 2021 Edition of The Best Lawyers in America© and Best Lawyers: Ones to Watch, this stand-alone publication features more than 5,000 Texas lawyers, including 979 “Ones to Watch” award recipients and 271 “Lawyer of the Year” honorees.
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| OSHA Issues Emergency Temporary COVID-19 Standard for Health Care and Modifies COVID-19 Guidance for All |
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by Tony Stergio OSHA issued the long-anticipated federal COVID-19 Emergency Temporary Standard on June 10, 2021. This standard, however, only applies to healthcare settings.
This Emergency Temporary Standard provides that covered health care employers must:
- screen workers prior to their shifts;
- provide masks and other personal protective equipment to employees for use in certain high-risk situations;
- ensure that masks are worn indoors and changed daily; and
- put in place ventilation procedures when dealing with patients who may have the virus.
Employers in the health care sector must also maintain social distancing protocols, and make sure that patients properly screen for virus symptoms. Finally, health care employers must also give workers paid time off to get vaccinated and recover from vaccine side effects as encouragement to get the shot. Read More...
EEOC Offers Vaccine Incentive Guidance
by Tony Stergio The Equal Employment Opportunity Commission (EEOC) recently issued guidance concerning employer vaccine incentives. These incentives do not require employees to receive the COVID-19 vaccine, but encourages them to do so. When an employer offers incentives for its employees to get vaccinated by the employer itself or the employer’s agent, “very large incentives” should be avoided. The EEOC believes that very large incentives may be so substantial as to be coercive to the employee. This is a potential problem where an employer’s agent is administering vaccines to employees who must answer disability-related screening questions before receiving a vaccine. Thus, a “very large incentive” could coerce an employee to disclose protected medical information to their employer.
The EEOC indicated there are no employer incentive limitations where the employer encourages employees to get vaccinated in the community (not by the employer or the employer’s agent). An employer is free to give its employees incentives to get vaccinated at third party sites and subsequently collect the vaccination information from the employees. The employer is required, however, to keep vaccination information confidential pursuant to the ADA.
While the EEOC did not offer examples of what constituted a very large incentive, it made clear that incentives for vaccines administered by employer or employer agents fall under the wellness plan participation incentive rules. These incentive rules concern employer or health care provider incentives designed to encourage employees to join voluntarily wellness programs. Read More...
Houston Federal Judge Decides Houston Methodist Hospital Can Require Employees to Get Vaccinated
by Tony Stergio Houston Federal Judge Lynn Hughes dismissed a lawsuit filed by former Methodist Hospital employees who were terminated by the hospital for refusing to get a COVID-19 vaccination. In doing so, Judge Hughes analyzed and rejected various arguments made by the former employees.
To begin, the former employees asserted that they should not have been terminated based on a public policy exception to Texas’ employees at-will doctrine. Judge Hughes opined, however, that the only public policy exception to employment at-will in Texas is where an employee refuses to perform an illegal act. To fit within this exception, the former employees would need to show that
- they were required to commit an illegal act that carried criminal penalties,
- they refused to engage in the illegal act,
- they were discharged, and
- the only reason for the discharge was the refusal to commit the illegal act.
Judge Hughes correctly held receiving a COVID-19 vaccination is not an illegal act and carries no criminal penalties. Further, Judge Hughes held that requiring employees to get the vaccine is not against public policy. Read More... |
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| Interpreting the New Texas Vaccine Passport Law |
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by Elaine Howard In this past legislative session, Governor Abbott signed into law Senate Bill 968, which, among other pandemic related measures, enacted the “Vaccine Passport” law. This provision is fairly short, and does three things:
- Prohibits any governmental entity from issuing a “vaccine passport”;
- Prohibits any business from requiring a “customer to provide any documentation certifying the customer’s COVID-19 vaccination or post-transmission recovery” to gain access to or receive services from the business;
- Any business in violation of this section will not receive a grant or enter state contracts.
The new law provides that it may not be construed to restrict a business from implementing COVID-19 screening and infection control protocols in accordance with state and federal law to protect public health. Read More... |
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ADA Title III Lawsuits on the Rise in Texas
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by Wesley Walker Texas is one of many states in the U.S. seeing a sharp rise in ADA III lawsuits. These so-called “Drive-by” lawsuits occur when disabled individuals visit businesses in older buildings to make a purchase from that business with the ulterior motive of finding an ADA violation to report to their attorney. These locations are often pre-scouted by an able-bodied person to locate a violation in advance. When the disabled individual subsequently encounters difficulties due to the alleged violation, a colorable cause of action against the business exists. This can mean costly damages, attorney’s fees, and the cost of the remediation of the alleged violation. The intent of the ADA may be noble, but it’s created a cottage industry for serial litigants and their attorneys.
The attorney’s fee provision in the ADA has been treated by the courts like other civil rights cases where a prevailing plaintiff always recovers fees. Even when defendants prevail in a case, they are almost never able to recover their fees. Because of the wording and the interpretation of the ADA, plaintiffs have an upper hand in early negotiation of a settlement when there is a potentially legitimate violation.
Businesses can mitigate their risk from these lawsuits by following the ADA. Compliance with every aspect of the ADA can be difficult. The ADA has a 279-page manual that details the architectural requirements that businesses must have to be ADA compliant. Even if a business has made every effort to become compliant, no business is immune from this cottage industry. Read More... |
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| Temporary Laborers - Are they Employees of Independent Contractors? It Depends |
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by Adam Robertson Construction companies frequently use temporary staffing agencies to contract laborers for projects. This can save time, money, and headaches when quickly putting together a labor force. It can also raise serious liability questions. For example, who is liable if the temporary laborer injures a third party? What if the temporary laborer is injured while on the job? In both cases, the client-company is facing a potential lawsuit, and in both cases, the client-company will want to avoid liability. Whether the client-company can do that depends on whether the temporary laborer is an employee or independent contractor of the client-company.
In the first case above, the client-company may want to argue it is not vicariously liable for the laborer’s conduct because the laborer is an independent contractor. In the second case, and assuming the company has worker’s compensation insurance, the client-company may want to argue the laborer is an employee and is barred from suing the client-company because worker’s compensation benefits are the laborer’s sole remedy. So, which is it? Are temporary laborers employees or independent contractors?
The best answer is: it depends. Under Texas law, whether a laborer is an employee or an independent contractor boils down to whether the company utilizing the temporary laborer has the “right to control” the laborer’s progress, details, and methods of work. Read More...
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| Construction Executive Law Firm Rankings are in! |
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Andrews Myers is pleased to announce that we have been recognized in the Top 10 firms among Construction Executive’s The Top 50 Construction Law Firms™ ranking.
Andrews Myers ranked ninth on the list of the 50 most influential firms practicing construction law in the country. We are extremely proud of this recognition, and are one of the few full-service business law firms that made the list.
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| Ongoing Caution for Future Design-Build Work: No Legislative Relief |
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by Carson Fisk While the 87th Legislative Session saw a number of bills signed into law that will significantly impact the construction industry, some important matters fell by the wayside. Among those was addressing the negative impact of the Texas certificate of merit process on design-builds as a means of project delivery.
Design-build offers many advantages, including a single source of accountability, enhanced communication among project participants, and faster project completion times. Yet Senate Bill 1928 in the 86th Legislative Session, signed into law by the Governor in 2019, led to concerns about unfair processes with respect to dispute resolution. While certainly not alone, I voiced these concerns in July 2019 in an article entitled “A Cautionary Tale for Future Design-Build Work,” which discussed Texas’s certificate of merit process concerning claims against design professionals as amended at the time by SB 1928:
"Previously, “the plaintiff” was required to obtain a certificate of merit—a pre-suit affidavit signed by an appropriately qualified person—in order to pursue a claim arising out of the provision of professional services against an architect, a professional engineer, a professional land surveyor, a landscape architect, or their respective firms. In 2014, the Texas Supreme Court held that a third-party plaintiff need not obtain a certificate of merit as it is not “the plaintiff” and, in any event, requiring such would be illogical..." Read More...
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| Where to find Andrews Myers |
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07/05 - 4th of July Holiday
07/15 - AGC Texas Houston Area Luncheon
07/15 - SPONSOR ABC Houston LOGIC: How-To Poker Tournament
07/20 - Managing Construction with AIA Document A201: Project Management Overview w/ Sara McEown
07/21 - HCA Webinar - Coming & Going w/ Tony Stergio
07/22 - SPONSOR HBJ's State of Commercial Real Estate: Retail |
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| Andrews Myers, PC |
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| Founded in 1990, with offices in Houston and Austin, Andrews Myers, Attorneys at Law, is a corporate law firm and recognized market leader in Texas construction law. The firm focuses on the concentrated disciplines of commercial litigation, construction, commercial real estate, corporate and business transactions, with additional emphasis on related issues including bankruptcy and insolvency, energy, employment and capital formation. A seasoned team of attorneys provides timely and cost-effective solutions to the most complex problems facing entrepreneurs and middle-market industry leaders throughout the state and the nation. For more information please visit www.andrewsmyers.com. |
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| COVID-19 Updates |
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Andrews Myers attorneys have been tracking and updating the many changes that could effect you and your business throughout the ongoing COVID-19 Pandemic. To see all of the articles and information you may have missed, please visit our dedicated COVID-19 page on AndrewsMyers.com.
To subscribe to our newsletter, click here. |
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