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Crafting Non-Competition Agreements for Mergers and Acquisitions

Erich Merrill, Miller Nash LLP

The author acknowledges the research assistance of Vivian Hernández for this article.

In the December 2024 edition of this newsletter, Justin Monahan and I cowrote an article discussing considerations of buying and selling a business from the perspectives of the buyer and the seller. Among the considerations explored was the post-closing transition process, which Justin expanded upon in a subsequent article. Another consideration included in our first article was the importance of non-competition agreements in such merger and acquisition (M&A) transactions. This article delves into the details of crafting non-competition agreements in preparation for, or as part of, M&A transactions.

Terminology: non-competes vs. other restrictive covenants

Creating non-competition agreements (or “non-competes”) is one contractual option for preventing employees from using their employer-company’s intangible business assets (e.g., customer lists, manufacturing techniques, or knowledge about suppliers) to set up a competing business or to work for a competitor after leaving the company. Non-competes are agreements in which an employee commits not to provide services to, or own an interest in, a business that competes with the company. To be enforceable, non-competes must be limited in both market area (traditionally geographic) and duration.

Other contractual methods for protecting against competitive use of a company’s business assets are non-solicitation agreements and nondisclosure agreements. For the purposes of this article, non-solicitation agreements are those under which an employee agrees not to hire or offer to hire the company’s employees, not to offer products or services to the company’s customers, or both. Nondisclosure agreements are agreements under which an employee agrees to refrain from disclosing or using information that the company considers proprietary.

Other protective agreements that companies often find desirable are work product assignment agreements and non-disparagement agreements. These agreements, while important tools for companies, are not the topic of this article.

Employee non-competes before the M&A transaction – state law restrictions

A number of business reasons can lead companies to decide that they will require non-competes from their employees. Companies that expect to engage in an exit transaction (i.e., an M&A transaction resulting in the sale of the company’s entire business to a buyer) have an additional incentive to require employee non-competes: obtaining non-competes from key employees can enhance the value of a business in the eyes of a buyer.

Counsel to such a company (or to its owners) must consider state law restrictions on non-competes before the company requires employees to agree to them. Oregon, Washington, and California, for example, each highly regulate non-competes, and in different ways.

As established in ORS 653.295, businesses with Oregon employees can require non-competes from employees but are subject to significant procedural and substantive limitations. Non-competes can be required only from salaried Oregon employees who are involved in administrative, executive, or professional roles and who make more than the threshold amount of $116,427, as of January 1, 2025. (This threshold is imposed under ORS 653.295 (1)(e).) With some exceptions, the employee must not be a licensed medical provider. The employer must have a protectible interest. Of particular significance for M&A purposes is Oregon’s requirement that non-competes be entered into at the time of initial employment or in connection with bona fide advancement. A new employee must be told of the non-compete in the job offer for the position, at least two weeks before starting work. Oregon allows employee non-competes to last for no more than twelve months. The case of Oregon Psychiatric Partners, LLP v. Henry, 316 Or. App. 726 (2022) provides a recent example in which failure to comply with the non-compete statute voided the non-compete.

Companies with employees in Oregon have other alternatives that can be effective to provide protection in lieu of a non-compete. Oregon permits both nondisclosure agreements and non-solicitation agreements. Oregon also permits bonus-restriction agreements, as defined in ORS 653.295(5). Under these agreements, a former employee can be required to refrain from competing with the company as a condition to receiving a bonus that will be paid after employment has ended.

Washington State also allows employee non-competes in limited circumstances and of limited scope. Under RCW 49.62.020, employee non-competes are unenforceable unless the company provides advance written notice to the new employee at the time of the initial employment offer or the non-compete agreement is supported by adequate consideration if it is being required after an employee has already begun work for the company. Washington does not permit companies to require a non-compete from any employee making less than a threshold amount ($126,858.83 as of January 1, 2026). Washington law also includes a presumption that any employee non-compete longer than eighteen months is unreasonable and therefore unenforceable.

Washington law strongly discourages the use of unlawful non-competes by imposing clear statutory penalties: any person harmed by an unlawful non-competition covenant can bring an action to recover the greater of actual damages or $5,000, plus attorney fees and costs. Employees or a subsequent employer are among the parties who might be harmed and are therefore permitted to bring an action to recover these amounts.

The Washington penalties for imposing a non-compete in the wrong circumstances can affect the value of a business in an M&A transaction. Companies preparing for an exit transaction may therefore prefer to rely on other means of protecting against former employee competition, such as a nondisclosure agreement.

Companies with employees in California, in some ways, have the easiest decision to make as to whether employee non-competes are appropriate. They are not. California prohibits and will not enforce employee non-competes. Under Cal Bus. & Prof. Code § 16600, any contract that restrains an individual from engaging in a lawful profession, trade, or business is void, regardless of its scope, duration, or other factors. Businesses with employees in California must rely on other means, typically nondisclosure agreements, in order to protect the business against use of intangible proprietary business assets by former employees. Traditional intellectual property protections such as patents, copyrights, and trademarks/service mark registrations are tools that businesses with employees in Oregon, Washington, or California can use for this purpose.

Non-competes in M&A transactions

The restrictions on employee non-competes in Oregon, Washington, and California are specific to the employment arena. The restrictions do not apply to non-competes that owners (limited to owners of more than a 1 percent interest in Washington) may enter in connection with the sale of their business. (See ORS 653.295(4); RCW 49.62.010(4)(d); Cal Bus & Prof Code §§ 16601, 16602, and 16602.5.) Owner non-competes are subject only to the common law requirement that such restrictions be of reasonable scope and duration. (See e.g., Eldridge v. Johnston, 195 Or. 379, (1952); Perry v. Moran, 109 Wash. 2d 691, (1987); Samuelian v. Life Generations Healthcare, LLC, 324 Cal. Rptr. 3d 596 (2024).) In virtually all M&A transactions, the buyer will require that the seller refrain from competing with the buyer (or with the business being sold) for a specified period of time.

Key negotiating points as to M&A non-compete provisions include who will be subject to the non-compete, how competition is defined, what exclusions will be specified, and scope in terms of duration and geographical area.

In an exit transaction structured as a sale of assets, the non-compete is usually directed at the selling entity. The owners of the selling entity may also be required to enter into a non-compete. In an exit transaction structured as a stock or equity sale, at least the controlling owner will be required to agree to a non-compete. Often other substantial owners will also be required to agree to a non-compete. In both types of transactions, the buyer will sometimes also require that key employees also agree to a non-compete, especially if those employees are also owners.

Numerous approaches can be taken as to the definition of competition or what constitutes a competing business. In some agreements, there is no definition of this concept, relying on the common understanding of competition to define the scope of the provision. More often, M&A agreements define a competing business as one that sells products or services that are substitutes for those sold by the acquired business, either as of the time of the transaction or at the time of the competing act after the transaction. For early stage or rapidly developing businesses, competing businesses can be defined as including those that are contemplated by the company’s research and development activities. While such a clause is desirable from the buyer’s standpoint, sellers should be cautious about agreeing to this flexible definition since it may be difficult after the transaction to understand exactly what business activities are prohibited.

Exclusions from the definition of competing business can be critical if a seller is selling one business but retaining another business. The retained business should be excluded from the noncompetition clause. The seller should also consider whether the retained business is likely to expand into additional sectors, in which case those should also be excluded from the definition.

The geographic (or market) scope and duration of the non-compete are also items that are commonly negotiated. The appropriate market scope of the non-compete will depend on what business is being sold, where its customers and operations are, and whether it is a bricks-and-mortar or virtual business, among other things. Attorneys for a buyer need to keep in mind that courts can strike down overly broad geographic or market scopes that the courts find unreasonable.

The duration of an M&A non-compete is typically three to five years after the closing date of the transaction, as to owners. If employee non-competes are part of the acquisition agreement, the duration will usually be substantially shorter, must be tailored to comply with applicable state statutes, and runs from termination of employment rather than from the closing date of the transaction.

Common non-compete mistakes by buyers

Buyers often stumble when formulating the non-compete provisions of an M&A transaction. A common mistake that buyers make is requiring existing employees to sign non-competes at the time of the business acquisition, without any significant consideration other than continued employment. In Oregon, amending an employee’s existing agreement to include a non-compete results in an unenforceable agreement if no bona fide advancement accompanies the amendment. In other states without statutory restrictions on non-competes, such an amendment can be subject to a challenge that there was no consideration, or inadequate consideration, for the amendment.

A less frequent (in my experience) but still surprising mistake is for buyers to require non-competes from employees in California or other jurisdictions where such provisions are clearly prohibited or unenforceable. This mistake usually occurs when the buyer and their attorney are located in states where non-competes are not restricted.

In both cases, attorneys representing buyers need to familiarize themselves with the laws of the states where the acquired business and its employees are located, to make sure that non-compete requirements comply with applicable state laws.

Diligence considerations

Both buyers and sellers should include the topic of non-competes in their diligence review and preparations for a potential M&A transaction. For the seller, the diligence review should include confirming that all existing non-compete agreements with employees have been appropriately documented, and that any agreements complied with applicable state law at the time they were entered into.

For the buyer, the diligence review for non-competes should focus on which non-compete obligations have been imposed on employees, whether obligations that do exist comply with applicable law and will be enforceable by the buyer, and whether any non-compete agreements that the seller has put in place may violate applicable law and subject the buyer to claims or penalties. For example, a buyer of a business with employees in Washington could be held liable to the employee or a former employee’s new employer for non-competition agreements entered into by the seller if those agreements did not comply with Washington’s requirements for such agreements.

Federal Trade Commission

On April 23, 2024, the Federal Trade Commission (FTC) issued a final rule that would have significantly restricted the ability of employers to require employees to agree to non-competes. The final rule has been stayed by the U.S. District Court for the Northern District of Texas (Civil Action No. 3:24-CV-00986-E) and remains the subject of litigation as well as uncertainty as to future action by the FTC. Unless and until the rule takes effect, restrictions under state law rather than federal law determine the limits on non-competes.

Practice tips

Attorneys representing sellers in M&A transactions, or representing companies preparing for an exit transaction, should consider the following factors when advising a client on non-compete agreements:

  • When advising a company on non-competes prior to an M&A transaction, confirm whether applicable state law permits the non-compete for the employees of interest. If a non-compete is permitted, explore with the client whether a non-compete may be unacceptable as a business matter and whether other restrictive covenants or traditional intellectual property protection may provide adequate protection against competition by former employees. As to any non-competes that are permitted and desired, provide the client with appropriate documentation of the non-compete and assist the client in obtaining the non-compete from employees in accordance with procedures required by applicable state laws.
  • When advising a seller in an M&A transaction, counsel the seller or owner who will be subject to the non-compete as to what parameters of the non-compete can be negotiated. The extent to which a non-compete requested by the buyer may be acceptable will likely depend to a large extent on the seller’s or owner’s future business plans. For example, an owner planning to retire may be unconcerned about a broad non-complete with a long duration and wide geographic scope.

Attorneys representing buyers in M&A transactions should consider the following matters when advising a client on non-compete agreements:

  • Confirm that any non-compete requested by the buyer has a scope that will likely be considered reasonable and will therefore be enforceable.
  • Confirm that any non-compete requested of the seller’s employees (or an owner in their role as an employee) complies with applicable state law. In particular, if a non-compete will be required of an existing seller employee who is not currently subject to a non-compete, confirm that the new non-compete is structured in such a way as to meet any requirements of applicable state law (if permitted at all).
  • Counsel the buyer that employee non-competes cannot always be relied on. For example, if an employee moves to California, courts will no longer enforce a non-compete that may have been enforceable in the state in which it was originally entered (when the employee lived in or worked from another state).

Conclusion

Non-competition agreements from sellers, owners, and key employees are an important part of most M&A transactions. Business owners preparing for an exit transaction should consider the extent to which obtaining non-competes from new and existing employees may be desirable. Attorneys advising sellers or buyers in connection with an M&A transaction need to be familiar with the statutory limitations on non-competition agreements and ensure that any such agreements are structured to be enforceable to the extent permitted by applicable law. ♦

Barrister Banter: Michael T. Faulconer

The purpose of the series is to bridge the gap between junior and senior business lawyers in Oregon, fostering understanding and camaraderie. For this quarter’s installment, we interviewed Michael T. Faulconer, an attorney at Gleaves Swearingen in Eugene, Oregon. Read on to learn about how Michael found his way from Tokyo to Eugene, his advice about the importance of critical thinking and a work-life balance, and his take on AI.

  1. Tell me about your path to being a lawyer. What inspired you to pursue this career? 

My path was not a traditional one. With degrees in International Studies and Japanese in hand, I went to Tokyo after college and worked for a little over three years in a Japanese government office as an international relations consultant. Following that, I went to work for a Japanese tech company. It wasn’t until I was in my late twenties that I began to think about law as a potential path for me. Although those experiences were priceless, I was looking for a career that would afford me a greater opportunity to apply analytical and problem-solving skills. I was very drawn to the idea of law school and the practice of law because there is no better medium for developing and applying those skills, particularly in a way that allows me to do good for people and for causes that I care about. That led me to Michigan Law School and becoming a lawyer.

  1. What is your practice area?

My practice focuses on business transactions and general corporate guidance. Although there is a particular focus on mergers and acquisitions (M&A), I enjoy assisting clients with all sorts of transactions, including commercial real estate sales/leases, financing transactions, and commercial contracts of all types. I got my start at Sidley Austin in Los Angeles, where my focus was mainly on finance and international transactions, but gradually my interest led me more toward M&A and other types of transactional work. I learned much during my time in LA, but making the move to Eugene gave me the opportunity to broaden my practice to include all types of transactional work, which was a welcome change.

  1. How long have you been in your current role?

I started at Gleaves Swearingen in 2007, and became a partner soon after. My role has grown to include firm administration as part of our management committee.

  1. How have you seen the practice change since you started practicing?

I think it has become less personal. It feels like we spend less time in the same room with clients and other legal professionals than we used to, and we don’t get to know people as well. Since I started practicing there have been numerous technological advancements that have enhanced our ability to provide services to our clients, but not without a cost. In this sense, I tend to think of technology as both a blessing and a curse.

  1. What do you wish you had known before you started working as a new lawyer?

A great work/life balance is the key to happiness. Life is too short to spend all of it working. After a few years in LA, I realized that I was missing out on too much, so I made the decision to move back to Oregon and situate myself in a community where I can have it all—a sophisticated business law practice, meaningful involvement in my community, family time, and time to spend on things that I enjoy. One of those things is coaching. I coached club and high school softball teams for fifteen years, giving me the opportunity to make a positive impact on the lives of young people in our community in a way that I couldn’t achieve with my lawyer hat on.

  1. What are your career highlights?

Over the years there have been many large deals involving many millions of dollars, and it’s easy to point to those and say those are the highlights. But there have also been many deals involving small business owners, nonprofits, and other members of our community that have been just as rewarding. Every time we helped a client achieve their goal counts as a highlight in my book.

(On the coaching side, two 6A state titles as the head coach at Sheldon High School stand out as highlights that I’m proud of. Go Irish!).

  1. What is your favorite part of the job?

I love solving puzzles and coming up with creative solutions to problems, and those are big parts of this job. I also enjoy my colleagues and coworkers that I work with on a daily basis. We have an amazing team here at Gleaves, and it makes the job all the more fun and rewarding when you have great people around you.

  1. What parts of the job do you wish you could outsource to AI?

You are asking the wrong guy. I’m pretty convinced we are just a few short steps away from finding ourselves in The Matrix or being destroyed by Cylons (shoutout to Battlestar Galactica). But all joking aside, being a good lawyer requires critical thinking, good judgment, and the ability to communicate with people, and these are things that can’t be outsourced. They are also what makes being a lawyer challenging and fun.

  1. What advice would you give a new business lawyer?

Don’t be in too big of a hurry. Focus on the quality of your work. Think critically, challenge assumptions, write clearly and with precision, and review thoroughly. Then double check everything. Good things will come to young lawyers who do these things.

  1. What advice would you give a senior lawyer who is charged with mentoring a new lawyer?

Law school was great for developing critical thinking skills, but I think most of us learn how to be a lawyer from other lawyers. Remember those who mentored you, and be patient and generous with your time in paying it forward. ♦

FinCEN’s New Reporting Requirement for Nonfinanced Residential Real Estate Transactions: What Business Lawyers Need to Know

Taylor K. Gersch, Gleaves Swearingen LLP

Introduction

Effective December 1, 2025, the Financial Crimes Enforcement Network (FinCEN) will implement a new nationwide reporting requirement aimed at helping government agencies prevent illicit actors from anonymously laundering money through residential real estate transactions. This requirement, issued by the US Department of Treasury, is set forth in the final rule 89 Fed. Reg. 70258 (Final Rule) published on August 29, 2024. Efforts are being made to overturn the new reporting requirement, but for now, the effective date continues to be December 1, 2025.

The Final Rule requires certain individuals involved in real estate transactions to report to FinCEN information about themselves, the transferor, the transferee, the real property, and the payment information when the transaction involves a nonfinanced transfer of residential real property to a trust or legal entity. The final rule curtails the ability of illicit actors to evade the scrutiny of financial institutions that have Anti-Money Laundering (AML) programs, Countering the Financing of Terrorism (CFT) programs, and Suspicious Activity Report (SAR) requirements.

How lawyers may be affected

Business lawyers may very well find themselves in the position of filing one of these reports with FinCEN come December 1. One of the most common scenarios where this reporting requirement will arise for lawyers is where a married couple owns residential property and they want to transfer the property into a legal entity. This qualifies as a nonfinanced transfer of residential real property to an entity. If there is no closing or settlement agent involved, and the attorney filed the deed with the recorder’s office, then the lawyer has an obligation to file the report with FinCEN.

To understand whether a transaction is considered a reportable transfer, let’s walk through the basics with a hypothetical case study.

Your client wants to purchase a small ranch-style home in Eugene from her aunt. She wants to pay with cash, and she wants to buy it in the name of her limited liability company because she plans to remodel the home and use it as a rental property.  Is this a reportable transfer according to FinCEN’s new rule? Yes, and here’s why:

Residential real property

The small ranch style home is a residential property and therefore meets the first element for a reportable transfer. Residential real property is property located in the US that meets one of the following requirements:

  • Contains a structure designed principally for occupancy by one to four families (includes single-family houses, townhouses, and entire apartment buildings)
  • Is land (vacant or unimproved) on which the transferee intends to build a structure designed principally for occupancy by one to four families
  • Is a unit designed principally for occupancy by one to four families within a structure (e.g., a condominium)
  • Are shares in a cooperative housing corporation

Additionally, the transfer of mixed-use property may be reportable if a portion is considered residential real estate (e.g., a single-family residence located above a commercial enterprise).

Nonfinanced transfer

The client’s LLC is paying all cash to purchase the home, and thus this transaction is a nonfinanced transfer. A nonfinanced transfer is a transfer that does not involve an extension of credit to all transferees that is both:

  • Secured by the transferred residential real property; and
  • Extended by a financial institution that has both an obligation to maintain an anti-money laundering program and an obligation to report suspicious transactions.

Types of nonfinanced transfers include all-cash transfers and transfers without consideration (i.e., gifts). Do not think that a nonfinanced transfer can only be a cash sale. A nonfinanced transfer can also include private or seller financing since those lenders often do not have an obligation to maintain AML or CFT programs or have SAR requirements.

Exceptions to reporting

The client’s proposed transaction does not fall under any of the following exceptions where a transfer is not reportable:

  • A transfer that is a grant, transfer, or revocation of an easement
  • Transfer resulting from the death of an individual, whether pursuant to the terms of a will, the terms of a trust, the operation of law (transfers from intestate succession, surviving joint owners, or transfer on death deeds), or by contractual provision (transfers from beneficiary designation)
  • Transfer incident to divorce or dissolution of marriage or civil union
  • Transfer to a bankruptcy estate
  • Transfer supervised by a court in the U.S.
  • Transfer for no consideration made by an individual, either alone or with their spouse, to a trust of which that individual, their spouse, or both of them are the settlor(s) or grantor(s)
  • Transfer to a qualified intermediary for purposes of 1031 exchange
  • Transfer for which there is no reporting person

Reporting person

Now the question is who actually files the report for the client. The final rule institutes a cascading approach to determine primary filing responsibility, and the lawyer should evaluate the parties involved in the transaction and whether any have the primary filing responsibility over the lawyer. A good rule of thumb is that if there is no closing or settlement agent involved, the lawyer is likely up next if they filed the deed with the recorder’s office.

Assuming the lawyer is required to file the report with FinCEN, the lawyer must file information about themselves, the transferee, the transferor, the real property, and the payment information. Much of the information required is similar to that collected under FinCEN’s Corporate Transparency Act, particularly regarding beneficial ownership, though the rules are not identical.

Electronic filing, retention of records, and penalties

Once the lawyer compiles all the necessary information for the report, the lawyer electronically files the information in a “Real Estate Report.” The report must be filed by the later of (1) the final day of the month following the month in which closing occurred or (2) thirty calendar days after the date of closing. The reporting person must maintain a copy of the certification by the transferee or transferee’s representative as to the identities of the beneficial owner of the transferee for five years. But the reporting person is not required to retain a copy of the real estate report.

The regulation does not explicitly address potential penalties for failing to file a report. Instead, according to the Federal Register, “FinCEN believes that it is unnecessary to list potential penalties in the regulatory text because the applicable penalties are already set forth by statute,” including the Bank Secrecy Act.

At the end of the day, the client can still purchase the small ranch-style home. But the lawyer will need to analyze the potential reporting obligations they may have under the cascading approach. ♦

Addendum 01/20/2026: The original posting of this article included a confusing definition of a non-financed transfer (under “Non-financed transfer”). The wording has been corrected.

Addendum 10/30/2025: The original posting of this article stated that “The report must be filed by the later of (1) the final day of the month in which closing occurred”. It has been corrected to “The report must be filed by the later of (1) the final day of the month following the month in which closing occurred”.

Addendum 10/10/2025: On September 30, 2025, FinCEN announced the postponement of the reporting requirements of the Residential Real Estate Transfers Rule until March 1, 2026.

Oregon’s SB 426 (2025): What It Does, Why It Matters, and How the Construction Industry Should Respond

Jacob Zahniser, Miller Nash LLP

Introduction

On June 9, 2025, Governor Tina Kotek signed Senate Bill 426 into law. SB 426 rewrites an important part of the liability picture in the Oregon construction industry by making property owners and prime contractors potentially jointly and severally liable for unpaid wages owed to unrepresented (i.e., non-union) employees of subcontractors at any tier. The law takes effect January 1, 2026. This article summarizes SB 426, traces its legislative history and purpose, explains the mechanics of how SB 426 accomplishes its purpose, identifies the main risks SB 426 creates for lenders, owners, and prime contractors, and recommends practical risk-management measures to alleviate those risks.

Summary of the text of the bill

In plain terms, SB 426 adds new sections to ORS chapter 652, allowing civil actions to recover unpaid wages (including fringe benefits, penalties, interest, and attorney fees) from an owner and prime contractor when a subcontractor does not properly pay an “unrepresented employee.” Per SB 426 § 2(1)(i), an “unrepresented employee” is a person that is “not represented by a construction trade labor organization that has established itself or its affiliates as the collective bargaining representative for persons performing work on a project” or “not covered by a collective bargaining agreement” with a procedure or mechanism for recovering unpaid wages.

Key features of SB 426 include:

  • Joint and several liability: Per SB 426 § 2(2), the owner “shall be jointly and severally liable with” the prime contractor “for any unpaid wages, including fringe benefit contributions and penalties” owed to an unrepresented employee who worked on the project. Neither the owner nor prime contractor can avoid liability by claiming the person was an independent contractor “unless the person qualifies as an independent contractor under ORS 670.600.” SB 426 creates a “rebuttable presumption” that a person performing labor on a construction project is not an independent contractor.
  • Who may sue: SB 426 authorizes an unrepresented employee, an authorized third-party representative (e.g., a worker advocate or payroll compliance organization), or the Oregon Attorney General to bring a civil action to recover unpaid wages, interest, penalty wages, damages, and attorneys’ fees.
  • Notice requirement: Before filing a lawsuit, the claimant must provide notice to the owner and prime contractor that specifies the alleged violation and the nature of the claim. The notice, however, does not limit the owner’s or contractor’s liability or prevent amendment of the complaint later. The owner or prime contractor has twenty-one days from the date of the notice to correct the alleged violation.
  • Records requirement: Upon request, subcontractors are required to provide the owner and prime contractor the following records: (1) certified payroll reports with sufficient information to determine whether the subcontractor has paid all wages earned by its employees working on the project, (2) the names of all its employees working on the project and whether the employee is an independent contractor, and (3) an affidavit attesting whether the subcontractor or any of its principals have been involved in any wage claim in the last five years, and the outcome of that claim.
  • Statute of limitations: An action to recover unpaid wages must commence within two years from the date when the wages and fringe benefits became due.
  • Scope: SB 426 applies to wages (and related compensation) for labor performed on a project “within the scope of the construction contract” and reaches unrepresented employees at any tier of subcontracting.

Those are the core statutory mechanics. The enrolled bill and digest provide the exact statutory language and technical definitions inserted into ORS chapter 652. These can be found here.

History of the bill

The measure originated as part of a wave of efforts to address wage theft and enforce wage-payment obligations on construction projects where the worker who is shorted pay may be several contracting tiers removed from the owner. Media coverage and employer organizations debated the bill’s merits and possible unintended consequences while worker advocates and labor organizations supported the bill as an enforcement tool. Legislative analysis and stakeholder commentary accompanied committee hearings and floor debate.

National and local legal and business outlets (including labor-advocacy groups and employment law firms) published early analyses warning of the bill’s implications and describing how it differs from prior Oregon law, which placed more limited direct liability on owners and prime contractors for subcontractor wage violations. Opponents include the National Association of Minority Contractors, the National Federation of Independent Business, and Multifamily NW. They expressed concern that expanded liability could increase project costs, lead owners and prime contractors to be more restrictive in who they contract with, create friction in multi-prime and public-private contractual arrangements, and disproportionately impact emerging business owners (such as Minority Business Enterprises (MBE) and Women Business Enterprises (WBE)) that may not have the administrative resources needed to comply with SB 426’s requirements.

Supporters emphasized the need to close enforcement gaps that leave workers without a remedy when subcontractors go out of business or otherwise fail to pay their laborers.

Purpose of the bill

By expanding the pool of potential defendants (owners and direct contractors), SB 426 aims to ensure workers recover unpaid wages when the immediate employer fails to pay. Supporters say this reduces barriers, like collection difficulties when a subcontractor has little assets or disappears, leaving workers uncompensated.

Exposing owners and prime contractors to liability creates financial incentive for those parties to verify payroll compliance down the subcontracting chain, requiring better oversight, stronger contracting terms, or prequalification of subcontractors.

Authorizing certain third-party representatives and the Attorney General to sue expands enforcement capacity beyond individual workers bringing their own claims.

In short, the policy goal is worker protection and deterrence of wage theft by reallocating enforcement leverage to parties higher in the contracting chain.

How the bill achieves its purpose

SB 426 achieves its purpose through three legal mechanics. First, SB 426 creates a statutory right to pursue owners and direct contractors for unpaid wages (jointly and severally). SB 426 increases the set of financially responsible parties a claimant can pursue. That directly helps wage recovery where the paying subcontractor is either insolvent or otherwise judgment-proof.

Second, by authorizing not only workers but also third-party representatives and the Attorney General to bring action, the bill reduces practical obstacles (language, fear of retaliation, lack of legal resources) that may otherwise prevent workers from suing for unpaid wages. This creates more enforcement activity and a higher likelihood of remedies.

Finally, by creating a two-year limitations period and statutory recovery of wages, fringe benefits, penalties, interest, and attorney fees improves prospects for full recovery, SB 426 makes lawsuits more attractive to plaintiffs and their counsel—again increasing enforcement reach.

The combination of these changes is deliberate: increase who can be sued, who can sue, and what can be recovered, thereby closing gaps in wage enforcement that leave workers uncompensated.

Risks to lenders, developers, and general contractors created by the bill

While SB 426 advances worker protection, it creates significant business and legal risks for industry stakeholders.

First, owners now face joint and several liability for unpaid wages, exposing the ownership entity, often a single-purpose entity, to significant unexpected claims. Note, SB 426 §2(7) specifically excludes projects relating to the owner’s primary residence or where the project “consist[s] of five or fewer residential or commercial units on a single tract….” For those owners not excluded under SB 426, they may demand more conservative contracting, including stronger indemnities, escrowed wage funds, or expanded vetting of the trades, each of which increases transactional friction and project costs.

Second, prime contractors are now on the hook not only for their own payrolls but potentially for wage shortfalls several tiers down the subcontracting chain, adding contingent liability and potential cash-flow stress if they must post bond or pay claims. Further, allowing third-party representatives and the Attorney General to sue makes litigation more likely. Prime contractors may face more frequent claims, discovery burdens, and reputational exposure, which may be factored into overall project costs.

Third, lenders rely on predictable cash flow from projects and clear priority of liens. Wage claims against owners/prime contractors could complicate borrower creditworthiness, cause liens or judgments that impair loan collateral, or force lenders to become involved in resolving claims to protect loan performance. SB 426 may require lenders to adjust underwriting assumptions, require stricter borrower covenants (e.g., payroll compliance representations), or demand additional protections (e.g., escrowed funds, increased reserves) to account for contingent wage liabilities lasting up to two years from substantial completion.

Fourth, smaller subcontractors, particularly MBE/WBE, may find it harder to obtain work if owners and prime contractors restrict the subcontractor pool to reduce exposure. At a minimum, prime contractors will certainly negotiate subcontracts to reallocate or limit exposure under SB 426, leading to nonstandard contract terms, increased subcontract administration and paperwork, and a reduced willingness from subcontractors to engage in the project.

How to alleviate the risks of SB 426

SB 426 does not make the risk of a wage claim unavoidable. Nevertheless, lenders, owners, and prime contractors can take measured, practical steps to manage exposure and preserve project viability.

Lenders will build the possibility of wage-related claims into loan underwriting: increase reserves, adjust loan-to-cost metrics, and require borrower representations about payroll compliance processes and cash reserves for payroll. Lenders could impose loan covenants that require borrowers to provide regular payroll compliance certifications and maintain escrow accounts for payroll disbursements on financed projects. Lenders may also investigate title insurance and litigation searches that include wage-claim risk assessments. Finally, lenders could include reporting requirements and third-party inspections to detect potential payroll problems early and require corrective action before claims escalate.

Owners can require the prime contractor to include contractual warranties and strong indemnities for payroll compliance by subcontractors and express duty to defend against third-party wage claims. Owners should make sure indemnities are clear, enforceable, and backed by insurance/bonds where possible. Note, indemnities do not change statutory liability to third parties; rather, indemnities shift risk among contracting parties. Further, owners can consider escrow accounts or retainage expressly tied to payroll compliance structured so that a portion of contract funds is available to cover potential wage claims without unduly impeding subcontractor operations. SB 426 §3(4)(a), (b) specifically allows the owner or prime contractor to “withhold payment to a subcontractor” if the subcontractor fails to provide the required certified payroll records and/or in the event the owner or prime contractor paid the subcontractor’s employee directly. Finally, owners can consider requiring payment and performance bonds with explicit payroll claim processes and include contractual representations of payroll compliance as part of the progress payment applications and as a condition to release retainage.

As for prime contractors, first, they should tighten subcontractor prequalification (financial health, payroll practices, reference checks) and require payroll reporting or third-party payroll-surplus verification for critical trades. They should consider including explicit payroll-payment obligations, audit rights, indemnities, and strong remedy provisions to subcontractors. At a minimum, prime contractors should start requiring subcontractors to provide payroll records, certified payrolls, and proof of tax and fringe benefit payments on demand, if not as part of the pay application process.

Second, prime contractors should implement subcontractor onboarding checks, periodic audits, and real-time payroll verification (via payroll service providers or clearinghouses). Subcontracts should include payroll compliance clauses tied to the release of progress payments or final payment, subject to the statutory restraints of ORS 701.625, Oregon’s prompt pay act.

Third, prime contractors should consider limiting tiers of subcontracting or using subcontractor prequalification pools to reduce the number of unknown payroll actors on a project. Where multiple tiers are unavoidable, prime contractors should require the immediate subcontractor to warrant payment of lower-tier labor and to carry responsibility for flow-through payments.

Finally, prime contractors may require subcontractors to carry appropriate insurance, maintain adequate working capital, and provide payment & performance bonds (where commercially viable).

Conclusion

SB 426 represents a significant policy shift in Oregon: it prioritizes worker recovery and deterrence of wage theft by widening the net of potential defendants and empowering third-party enforcement. SB 426 will benefit many workers who historically have had little practical remedy when subcontractors fail to pay. At the same time, however, the law reallocates contingent risk upward in the contracting chain and increases litigation probability, with real implications for owners, prime contractors, and lenders. To address the risks of SB 426, owners, prime contractors, and lenders will need clear contract drafting, tighter subcontractor vetting, payroll monitoring, and escrow/bonding strategies. The next few months (before SB 426’s January 1, 2026 effective date) are a critical window for the industry to adapt: review contract templates, update procurement and underwriting practices, and put compliance programs in place so projects continue to move forward while workers’ wage claims are enforced more effectively. ♦

Navigating Tariffs: Essential Knowledge and New Legal Trends

Incainti Sofia McDonald and J. Dino Vasquez, Miller Nash LLP

Introduction

A tariff is a tax imposed by a government on goods imported into the country. Though the concept may appear straightforward, tariffs play a central and complex role in international trade policy. Governments employ tariffs to shield domestic industries from foreign competition, to generate revenue, and to leverage negotiating power in trade agreements. At the same time, tariffs can influence consumer prices, supply chains, and diplomatic relations.

The United States, like most countries, uses a structured classification and valuation system to determine how and when tariffs are applied. For importers, manufacturers, and policy professionals alike, a clear understanding of tariffs and their legal framework is essential to navigate the regulatory landscape and mitigate associated costs.

Tariffs and import duties

It is important to distinguish between tariffs and the broader category of import duties, which encompass a range of taxes imposed on imported goods. Tariffs are a subset of these duties, but other forms also exist to address specific trade concerns.

Customs duties are the most general form, typically calculated based on product category or declared value. Excise duties, in contrast, apply to specific goods such as alcohol and tobacco, and they often reflect public health or regulatory considerations rather than purely economic concerns. Anti-dumping duties are levied when a foreign company is found to be selling products in the U.S. market at prices below fair market value, potentially undermining domestic producers. Similarly, countervailing duties are imposed to counteract subsidies provided by foreign governments to their exporters, which may distort competitive conditions in the U.S. market.

Each of these duties can be imposed independently or in combination with standard tariffs, depending on the origin, nature, and purpose of the imported goods.

Categories of tariffs in the United States

In the U.S. tariff system, there are three main types of tariffs, each calculated differently and serving different regulatory purposes.

The first category is ad valorem tariffs, which are based on the value of the goods being imported. This value often reflects the declared cost of the goods, including insurance and freight, and it may be influenced by international commercial terms (known as INCOTERMS). For instance, if goods are imported with a declared value of $500,000 under Cost, Insurance, and Freight (CIF) terms and the applicable tariff rate is 10 percent, the importer would be responsible for paying $50,000 in tariffs.

The second type is the specific tariff, which is calculated based on physical measurements such as weight, quantity, or volume. Unlike ad valorem tariffs, specific tariffs are fixed and do not fluctuate with market price. They are commonly applied to raw materials or agricultural products, where valuation based on volume or weight is more practical and consistent.

The third category is the compound tariff, which combines both ad valorem and specific components. For example, imported aluminum may be taxed both as a percentage of its value and an additional amount per ton. These tariffs can be more complicated to calculate, requiring precise classification, documentation, and often additional scrutiny from customs authorities.

The Harmonized Tariff Schedule of the United States (HTS)

The cornerstone of the U.S. tariff classification system is the Harmonized Tariff Schedule of the United States (HTS). The HTS is maintained and regularly updated by the U.S. International Trade Commission. It codifies the duty rates for every type of imported product and serves as the basis for customs processing and trade statistics. Each product receives a unique ten-digit code based on its material composition, function, and other distinguishing characteristics. These codes not only determine the applicable duty rates but also assist in tracking trade data and enforcing trade restrictions.

For example, automotive wheel covers and hubcaps may be classified under HTS code 8708.70.60.45. This classification sequence begins at the section level (covering transport equipment), narrows to the chapter on motor vehicles, then further specifies the relevant part or accessory and its intended use. The general duty rate for these items may be 2.5 percent, but the rate can vary dramatically depending on the country of origin. Products imported from countries such as Cuba or North Korea may be subject to a 25 percent rate due to political restrictions, while goods from China may incur an additional 25 percent under Section 301 tariffs. These variations illustrate the importance of accurate product classification, which is often managed by licensed customs brokers due to the complexity involved.

Businesses of any size or individuals can hire a licensed customs broker; the more complex a shipment is or the greater the value of goods being imported, the more important a licensed customs broker is for risk mitigation. For those who wish to hire a broker, U.S. Customs and Border Protection (CBP) provides a list of permitted customs brokers and contact information.

Legal authorities for imposing tariffs: Section 301 and IEEPA

The U.S. government has multiple legal mechanisms at its disposal to impose tariffs, each rooted in distinct statutory authorities. Two of the most significant are Section 301 of the Trade Act of 1974 and the International Emergency Economic Powers Act (IEEPA). Each provides the executive branch with tools to respond to trade-related threats and unfair practices, although they differ in scope, purpose, and procedural requirements.

Section 301 of the Trade Act of 1974

Section 301 authorizes the Office of the United States Trade Representative (USTR) to investigate and respond to foreign trade practices that are deemed unfair or discriminatory and that burden or restrict U.S. commerce. The process is designed to be methodical, transparent, and consultative, involving multiple stages of investigation, negotiation, and, where necessary, enforcement.

Investigation

Investigations under Section 301 can be initiated in one of two ways. An interested party, such as a business, trade association, or labor group, may file a formal petition with the USTR, prompting an official inquiry. Alternatively, the USTR may initiate an investigation independently, based on its own assessment of foreign trade practices.

Consultation

During the consultation period, the USTR conducts consultations with the petitioner and seeks input from a variety of stakeholders. These include representatives from the private sector, members of industry advisory committees, and relevant agencies such as the U.S. International Trade Commission. Public comments are also solicited and reviewed through notices published in the Federal Register, ensuring transparency and public engagement.

Negotiation

If the investigation finds that a foreign policy or practice is an unfair or harmful to U.S. trade interests, the USTR will attempt to resolve the issue through negotiation. Where a formal trade agreement exists between the United States and the foreign country in question, any dispute resolution procedures outlined in that agreement are typically followed.

Retaliation

If a resolution cannot be achieved, the USTR may proceed to retaliation, imposing duties or other import restrictions on the goods of the offending country. The goal is to implement measures equivalent in value to the estimated harm suffered by the U.S. economy. Section 301 provides the USTR with broad authority to take action, which may include increasing tariffs, suspending trade concessions, restricting import licenses, or entering into binding agreements that compel the foreign country to eliminate the offending practice.

Once imposed, Section 301 tariffs remain in place for four years unless formally extended following a review.

In recent years, Section 301 has been used extensively to address trade imbalances and intellectual property concerns, particularly involving China. The USTR announced on April 17, 2025, that it would be pursuing further action targeting China’s maritime, logistics, and shipbuilding sectors. The proposed measures include new fees assessed on Chinese-owned vessel operators, fees on Chinese-built ships based on net tonnage or container capacity, and charges applied to foreign-built car carriers with ties to Chinese financing. These fees are designed to escalate over time, signaling long-term scrutiny of the sector.

Public involvement has played a significant role in shaping these decisions. For example, in connection with the maritime investigation, the USTR sought public comments and held a hearing in May 2025. More than six hundred written submissions were received, and sixty individuals testified. Based on this input, the USTR proposed modifying the structure of the tariff fees by shifting the basis of calculation to net tons. This iterative process highlights the importance of public participation in U.S. trade enforcement policy.

This procedure serves as a proactive channel for affected parties to influence tariff implementation and shape policy outcomes.

The International Emergency Economic Powers Act (IEEPA)

In contrast to the structured, investigatory process established under Section 301, the International Emergency Economic Powers Act (IEEPA) grants the president broad authority to regulate imports and other economic activities in response to national emergencies. Enacted in 1977, 50 U.S. Code § 1701 of the IEEPA enables the president to impose tariffs, sanctions, and other trade restrictions when faced with an “unusual and extraordinary threat” to the national security, foreign policy, or economy of the United States.

On April 2, 2025, President Trump invoked the IEEPA in Executive Order 14257 to declare a national emergency arising from what he characterized as “persistent and harmful annual U.S. goods trade deficits.” The administration cited a lack of reciprocity in global trade relationships and predatory foreign policies as justification for sweeping changes in the U.S. tariff regime. Following the declaration, several adjustments were made to existing tariff rates, the list of affected countries, and the scope of covered goods.

Unlike Section 301, actions taken under IEEPA do not require an evidentiary investigation or public comment period. However, they are subject to judicial review and have been the focus of considerable litigation, with plaintiffs challenging the factual basis and legality of the declared emergency. Courts have begun scrutinizing whether the IEEPA framework permits such expansive use of tariff authority absent a clear and imminent threat, and further rulings may clarify the limits of presidential discretion under this statute.

Tariff preferences, exemptions, and trade agreements

While most imported goods are subject to tariffs under the HTS, various trade agreements and development programs offer exemptions or preferential treatment to certain products and countries.

One such program is the African Growth and Opportunity Act (AGOA), enacted in 2000. AGOA allows for tariff-free access to the U.S. market for over 6,800 product categories from eligible Sub-Saharan African countries. To qualify, participating nations must meet a series of criteria, including adherence to the rule of law, democratic governance, protection of human rights, and efforts to eliminate barriers to U.S. investment and trade. As of 2025, thirty-two countries remain eligible, with South Africa being the largest beneficiary, particularly through automobile exports. However, the AGOA program is currently scheduled to expire in September 2025, and its future remains uncertain pending congressional action.

Another major trade agreement is the United States–Mexico–Canada Agreement (USMCA), which took effect in July 2020 as a successor to the North American Free Trade Agreement (NAFTA). Under USMCA, most goods traded between the U.S., Mexico, and Canada continue to enjoy duty-free treatment, provided they meet strict rules of origin requirements. These rules stipulate that products must be primarily manufactured or sourced within the member countries. Determining eligibility, however, can become complicated for products composed of global components or subject to variable manufacturing processes.

Current litigation

In April 2025, President Trump issued a declaration of national emergency, citing the ongoing U.S. trade deficit and lack of reciprocal trade practices as threats to national security and the economy. Pursuant to IEEPA, a series of tariffs were introduced or increased on products from various countries. This move has been the subject of significant legal scrutiny.

Several cases have been filed. Litigants have generally argued that IEEPA does not authorize the imposition of tariffs and even if it did, that no genuine national emergency exists to justify such measures. In one court’s response, the U.S. Court of International Trade (CIT) held that if the president wants to address a trade deficit through tariffs, the president already has the tariff authority specific to balance-of-payment issues provided in Section 122 of the Trade Act of 1974—not IEEPA. The Federal Circuit stayed the CIT’s nationwide injunction pending the appeal that was subsequently filed. On August 29, the Federal Circuit affirmed the CIT’s holding that the reciprocal tariffs exceeded the president’s authority. Again, the administration has appealed the case and requested that the Supreme Court make a final ruling. The eventual outcome of the case may reshape the legal boundaries of presidential authority in trade matters.

Who bears the cost of tariffs?

Contrary to common perception, tariffs are not paid by foreign exporters or governments. The responsibility for payment lies with the importer of record, which may be the brand owner, distributor, or even the final customer depending on the nature of the supply chain. The importer is responsible for the cargo declaration before the goods are shipped. Once goods arrive at port, the goods are held by CBP. The importer of record then fills then the relevant CBP entry forms for customs release. As such, where there is significant risk to an inexperienced importer, retaining a customs broker to assist with the import paperwork is recommended.

Tariffs are typically paid upon customs clearance at the port of entry. In cases where goods are routed to bonded warehouses, duties may be deferred until the products are released into U.S. commerce. The contractual terms between buyer and seller are often defined by INCOTERMS, which further clarify who is liable for tariffs and at what stage. For example, under FOB (Free on Board) terms, the buyer assumes responsibility for tariffs once the goods are loaded for shipping. Under DDP (Delivered Duty Paid) terms, the seller takes on the full burden, including import duties and customs clearance. EXW (Ex Works) places the maximum responsibility on the buyer, who must arrange and finance all aspects of the transport and importation process, including tariffs.

Mitigation strategies for importers

While tariffs are often unavoidable, businesses may implement several strategies to reduce their financial impact.

One such approach is the First Sale Rule, which permits the importer to declare the customs value based on the original sale between the manufacturer and the middleman, rather than the final resale price. By using the lower, initial transaction value, the importer can reduce the assessed tariff.

Another option is tariff engineering, where products are designed or modified to qualify for lower-duty classifications. This may involve changing the composition, assembly, or origin of the goods. For instance, importing parts separately or avoiding specific finishes can lead to reclassification under a more favorable duty rate.

Companies may also take advantage of Foreign Trade Zones. These designated areas allow goods to be imported, stored, and even assembled without incurring customs duties until they enter U.S. commerce. If the goods are ultimately re-exported or destroyed, no duties are paid at all.

Bonded warehouses offer a similar benefit by permitting duty-free storage of goods for up to five years. This can be useful for products with uncertain demand or longer distribution timelines.

Lastly, businesses may be eligible for duty drawbacks, which are refunds on duties paid for goods that are subsequently exported, destroyed, or returned. Several types of drawbacks exist, including direct identification manufacturing, substitution manufacturing, unused merchandise, and non-conforming goods. Depending on the category, companies may recover up to 99 percent of the duties initially paid.

Conclusion

In the modern global economy, tariffs are more than just taxes—they are instruments of economic strategy, tools of diplomacy, and mechanisms for enforcing trade policy. Navigating the U.S. tariff system requires a nuanced understanding of product classification, valuation, legal authority, and available exemptions or mitigation strategies. As international trade continues to evolve amid shifting geopolitical and economic conditions, businesses and policymakers must remain vigilant, informed, and adaptive in their approach to tariffs. ♦

Barrister Banter: Peter Bragdon

The purpose of the series is to bridge the gap between junior and senior business lawyers in Oregon, fostering understanding and camaraderie. For this quarter’s installment, we interviewed Peter Bragdon, the Executive Vice President, Chief Administrative Officer, and General Counsel for Columbia Sportswear Company and the winner of the 2024 James B. Castles Leadership Award. Read on to learn about his rich professional background that led him to working in-house for Columbia as well as his opinions on making mistakes, seeking mentors, and being a mentor.

  1. Tell me about your path to being a lawyer. What inspired you to pursue this career? 

I took a twisted, unconventional path, and I consider it a stroke of good fortune that I am in this role. I tend to look at careers as a collection of skills and experiences that can be put to use in a variety of ways. For me, my primary experiences are a blend of law, public policy, media, and business, and I use all of that in my role. I started out as a journalist and won a fellowship to get a master’s degree at Yale Law School. It was an amazing year, and I got a glimpse into the power of understanding the law and the multiple ways a law degree can be used to create change. I chose to go on to get my JD, hoping it would lead to opportunities in the private and public sectors and also help me find ways to contribute to civic efforts outside of work. That’s how it worked out. For example, early in my time at Columbia I was given a leave of absence to serve as Governor Kulongoski’s first chief of staff. That role didn’t require a law degree, but I doubt I would have gotten there or been able to do the job without it.

  1. What is your practice area?

Being in-house has meant being a “free-range” lawyer. Working for a public company selling products in roughly one hundred countries, there is no end to the variety of legal issues, which on a given day can include engaging with U.S. Securities and Exchange Commission, addressing a trademark issue in Europe, or looking into a construction project in India, just to name a few examples. I started out as a corporate securities and finance attorney, which was great training for thinking in a multifunctional way.

  1. How long have you been in your current role?

I have two answers. I became General Counsel in 2004. But my role has evolved steadily, as has the company. Over time I have come to oversee multiple functions within the company and eventually took on the roles of Executive Vice President, Chief Administrative Officer, and General Counsel.

  1. How have you seen the practice change since you started practicing?

I see many more in-house lawyers getting involved in a broad range of issues across organizations, managing multiples functions and being viewed as strategic partners in leadership. That’s certainly been an opportunity at Columbia, but I see it elsewhere.

  1. What do you wish you had known before you started working as a new lawyer?

Mistakes may be your best teacher…avoid them at all costs, but use every one of them to learn. I have worked with more amazing people than I can count, but a common theme that has made them amazing was how understanding they were and the room they gave me to make my own mistakes and learn. I wish I hadn’t made them, but I probably ended up better off as a result.

  1. What are your career highlights?

Meeting Ted Kulongoski when I was a journalist in the 1980s and working with him as Special Assistant Attorney General in the Oregon DOJ and as his Chief of Staff in the Governor’s office. Getting introduced to Columbia Sportswear’s management in the 1990s before the company went public, and getting the chance to join the company and grow with it. And both of those things led to civic engagement, ranging from the Board of the Oregon Community Foundation to being a member of the Port of Portland Commission.

  1. What is your favorite part of the job?

At Columbia Sportswear, we work to connect active people with their passions. That is a great mission, and I get to pursue it with many talented people across every company function. I get paid to see the world and learn something new every week.

  1. What parts of the job do you wish you could outsource to AI?

I would be happy to never read another contract. Fortunately, you can’t really outsource judgment or relationships, which are among the best parts of being a lawyer.

  1. What advice would you give a new business lawyer?

Don’t wait for business to come to you. Personally, I think some of the best parts of being a lawyer are the relationships you can build, and the opportunities to gain a holistic understanding of a business or industry. There are plenty of isolated legal issues that have to be addressed at given times, and those are important, but it can be incredibly satisfying to be engaged with management on a business effort, start to finish, bringing not only the legal skill but business judgment. I have enjoyed being at the table when ideas are first debated through to when the business effort comes to fruition (or, in some cases, doesn’t). But my best advice is to seek mentors wherever you can. You’ll be surprised how many people inside and outside the law are willing to be helpful.

  1. What advice would you give a senior lawyer who is charged with mentoring a new lawyer?

Be kind and be generous with your time. It is hard to believe many senior lawyers would have been successful if someone hadn’t done that for them. Pay it forward. ♦

Corporate Transparency Act Spring 2025 Update: A Requiem?

Michael Walker, Samuels Yoelin Kantor LLP

The Corporate Transparency Act (CTA) is a federal statute that was incorporated with some amendments into the National Defense Authorization Act for fiscal year 2021, was passed over a presidential veto, and was effective as of January 1, 2021. The act seeks to harmonize the disparate beneficial ownership reporting laws of the states into one federal system. In theory, a central database containing beneficial ownership information of U.S. business entities will allow the federal government to better combat money laundering and the financing of terrorism. The federal agency tasked with enforcing the CTA is the Financial Crimes Enforcement Network (FinCEN). The Oregon Business Lawyer has published several articles on the CTA, its implementation, and subsequent litigation over the constitutionality of the CTA.

Now, in 2025, the direction of the CTA has taken an abrupt turn. Following several lawsuits that had temporarily enjoined FinCEN from enforcing the CTA, FinCEN extended the reporting deadlines for most reporting companies until March 21, 2025. In addition, FinCEN announced that during the thirty-day extension period, it would “assess its options to further modify deadlines, while prioritizing reporting for those entities that pose the most significant national security risks.” On March 2, 2025, the Treasury Department announced the suspension of enforcement of the CTA against U.S. citizens, domestic reporting companies, and their beneficial owners, and further announced its intent to engage in a rulemaking to narrow the reporting rule to foreign reporting companies only.

The interim final rule issued by FinCEN

Following that announcement, on March 21, 2025, FinCEN issued an interim final rule (the IFR) that limits the definition of a “reporting company” under the CTA to include only non-U.S. companies and their non-U.S. beneficial owners. In describing its rationale for issuing the IFR, FinCEN stated:

As the preamble to the Reporting Rule states, “[s]mall businesses are a backbone of the U.S. economy, accounting for a large share of U.S. economic activity, and driving U.S. innovation and competition.” The vast majority of domestic small businesses are legitimate and owned by hard-working American taxpayers who are not engaged in illicit activity. The Secretary [of the Treasury] has assessed that exempting them would ensure that the Reporting Rule is appropriately tailored to advance the public interest, considering the burdens imposed by the regulations without sufficient benefits. The Attorney General and the Secretary of Homeland Security have concurred that collecting BOI [beneficial ownership information] from domestic reporting companies would not be “highly useful in national security, intelligence, and law enforcement agency efforts.

The text of the IFR provides for this change by redefining the term “reporting company” at 31 CFR 1010.380(c) to remove the previously defined term “domestic reporting company” at 31 CFR 1010.380(c)(1)(i). By taking this step, any entity that meets the definition of the previously defined term “domestic reporting company” is no longer within the scope of the reporting rule and therefore is no longer required to file BOI reports with FinCEN.

In addition, the IFR exempts foreign reporting companies, and their U.S. person beneficial owners, from the requirement to provide the BOI of any U.S. persons who are beneficial owners of the foreign reporting company. As such, foreign reporting companies that only have beneficial owners that are U.S. persons will be exempt from the requirement to report any beneficial owners.

So, what BOI reporting requirements remain after the IFR? The IFR retains the requirement for foreign reporting companies and their beneficial owners (excluding U.S. persons) to report their BOI to FinCEN. It has extended the deadline for those companies to file initial BOI reports, or update or correct previously filed BOI reports, to thirty days after the date of the publication of the IFR (i.e., March 26, 2025) or thirty days after their registration to do business in the U.S., whichever comes later.

In addition, the introductory portion of the IFR stated that FinCEN was accepting comments on the IFR and will assess the exemptions, as appropriate, considering those comments. FinCEN intends to issue a final rule this year. Comments on the IFR were due on May 27, 2025.

The future of the CTA

It is difficult to assess the future of the CTA at this point. FinCEN could reverse its position expressed in the IFR, although this is unlikely based upon the rationale described in the IFR. It is also possible that additional litigation could develop regarding whether FinCEN exceeded its statutory authority under the CTA when it issued the IFR. While Congress could act to repeal the CTA or attempt to override the IFR, at this time there does not appear to be significant momentum in Congress for either action. Hence, for the time being, attorneys advising foreign reporting companies will still need to watch the developments from FinCEN and the possible issues that could impact the substantive requirements and procedures for CTA reporting. For attorneys advising domestic reporting companies, the IFR gives sufficient authority to advise clients that CTA reporting is not currently required, at least until FinCEN issues a “final” rule that changes those requirements. ♦

Beginning at the End: Post-Transaction Integration Considerations

Justin Monahan, Otak

In the December 2024 edition of this newsletter, Erich Merrill and I cowrote an article discussing considerations of buying and selling a business from the perspectives of the buyer and the seller. As a follow-up, this article takes a closer look at integration activities that follow an acquisition and merger to outline practices that have proven effective and those that have not.

This article addresses integration considerations regarding strategic alignment, cultural integration, organizational structure, human resources, technology systems, operations, marketing and communication, legal and compliance matters, and financial integration. These considerations do not necessarily apply to the parties until the integration occurs, hence their being labeled as “post-transaction” activities. However, if parties only try to deliberately address these integration considerations after a deal is struck, then that is too late for any meaningful action to occur. To achieve successful integration, the parties must think about what the end state of integration will look like from the start of the transaction. This can be difficult to fully appreciate because often there are only key leaders from each of the companies involved in critical pieces of the initial negotiations or even deal-making. After a deal is struck and the parties get into the weeds of integration in earnest, there will be additional input from all different corners of each company that will need to be managed. But intentionally structuring the end state of integration into the fabric of the deal itself will help keep everyone focused on the shared vision that excited the companies’ leaders in the first place.

Strategic alignment

When negotiating a deal, through-thinking—conceiving of the deal all the way through to the resulting performing merged entity—prompts the establishment of a clear vision: Why are we joining forces? What is the strategy driving each company? Is the shared goal to achieve economies of scale, geographic expansion, vertical integration, or diversification, or is the goal to capture specific innovations or intellectual property? Further, moving beyond visionary statements to developing critical success factors and key performance indicators (KPIs) can not only help the parties quantify transactional considerations such as earnouts but also provide a bright line for the full team to clearly understand future success. Without strategic alignment to provide the bedrock for the parties to weather all the ups and downs of integration and business, the integration process risks becoming fragmented and ineffective.

Cultural integration

A challenging and often underestimated aspect of post-merger integration is cultural integration. Cultural misalignment can lead to disengagement, turnover, and reduced productivity at the employee level and failure to achieve business objectives at an organizational level. As mentioned above, one hindrance to cultural integration is that often only need-to-know key leaders are involved in deal discussions. In target entities—those being acquired—these need-to-know leaders are often founders or principals who have defined the culture for many years. These leaders have built a team around them that appreciates this culture. If the acquisition serves as a retirement path or other exit for these key founders and principals, the resulting entity and culture can quickly take on a character that differs drastically from what the team is used to.

While the confidentiality of sensitive deal discussions is often necessary, the parties need to plan for rapid and deep engagement with tier-two and tier-three leaders in the target firm. This engagement may include identifying cultural similarities and differences between the parties and defining a desired culture for the resulting entity. To support these goals, training and change-management programs should also be discussed in advance. Mergers between companies with vastly different working styles, communication norms, and management philosophies require careful cultural due diligence and proactive measures to bridge gaps.

Organizational structure

Each integration process must establish a new organizational structure that reflects the needs of the merged entity. This includes redefining leadership roles, reporting relationships, and determining who has decision-making authority. It may also mean streamlining layers of management to eliminate redundancy. Although there can be pain points in doing that, a clear organizational structure helps ensure that employees understand both their roles in the merged entity and how decisions will be made.

Human resources and talent management

Successful integrations need to resolve uncertainties about human resources and talent management. Employees are the core assets of any organization, and managing human resources during a merger is critical to maintaining morale and retention. The key founders and principals know the fate of their roles if exit schedules or retention provisions are directly negotiated into the deal, which may be critical if they are tied to earnouts structured over a certain number of years. But the tier-two and tier-three leaders discussed earlier are going to be the future of the company, and the parties should think early and often about making these leaders not just culturally comfortable but also financially comfortable. Integrating parties may consider promptly introducing a new class of bonus, buy-in, or other compensation structures to immediately capture the attention and loyalty of these emerging leaders.

Each party will need to understand the impact that the resulting benefits, performance management systems, and policy and procedure changes will have on the resulting entity’s employees. Prompt and transparent communication, coupled with a deep functional understanding of how these changes will impact staff, will help mitigate the risk of losing valuable employees during the integration.

Technology systems

Always an interesting challenge is combining two technology infrastructures. Two approaches are to leave the target firm alone or to transition them over to the acquiring firm’s systems over time. After all, the target firm built the business using their own familiar enterprise resource planning (ERP), customer relationship management (CRM), and other core platforms. It could be disruptive to the staff to change the way they do their jobs. I have seen this disruption when target firms take the immediate “phase in” approach; the process gets messy, territorial, confusing, and ultimately inefficient.

On the other hand, the parties will need to deliberately evaluate what works best given the scale of the transaction. While prompt and thorough technology transitions can be technically complex and costly, they may be ideal for ensuring business continuity and enabling long-term synergies. Another consideration is, of course, cybersecurity. A clear technology, data, and user onboarding process for the target entity could be the clearest path to ensuring there are no gaps in the resulting entity’s cybersecurity platform.

Operations

Operational integration focuses on combining the day-to-day functions of the two companies to improve efficiency and customer service. Depending on the nature of the businesses involved, this requires leaders in each firm to identify overlapping processes and design streamlined workflows; harmonize supply chains, logistics, and procurement functions; consolidate manufacturing or service delivery operations where feasible; align quality assurance and control standards; and implement joint customer service models. These analyses will be impacted by a number of external considerations as well, such as the terms of supplier contracts with ongoing engagements, the nature of their work with each firm, and the expectations of customers. This is often a longer-term project that fits in with ongoing efforts to consistently review policies, procedures, and workflows to provide the best experience for staff and clients or customers alike.

Marketing and communication

Depending on the nature of the transaction, tremendous effort may go into marketing and communication. How the merged entity presents itself to the market and communicates with stakeholders can significantly impact its reputation and market position. The market and stakeholders will wonder: Did the target entity just supply the acquiring entity with a significant new capability, services line, or market position? How are the target’s key founders or principals going to function as ambassadors of the resulting brand going forward, capitalizing on the personal brand they have built in the industry under the new flag? Similar to the IT and systems integration described above, we have seen both gradual and prompt integration strategies in this regard. Which option is best for a given transaction will depend on the depth and breadth of the target firm’s brand. It is crucial for the parties to align early and consistently on branding decisions to keep the flow of the branding tied to their strategic evolution. In addition, clear and consistent internal communication helps reduce uncertainty and foster employee engagement throughout the integration process.

Customers, suppliers, investors, and other stakeholders need assurance that the merger will bring added value rather than disruption. External branding, marketing, and communication in regard to market presence is important, but you cannot beat picking up the phone or making time to meet key clients, customers, and industry partners to describe the enhanced capabilities of the resulting firm. And every effort should be made to ensure continuity of service and fulfillment during the transition. If clients are already spooked just by the news of a transaction, the parties certainly do not want to validate their fears with a dropped delivery.

Legal and compliance matters

Legal and regulatory considerations must be carefully addressed during integration to avoid liability and ensure compliance with laws in all operating jurisdictions. A robust due diligence process can reduce the future burdens for the merged entity in administering contracts, liabilities, and obligations. If the transaction has strong intellectual property components, or is contingent on regulatory approvals, these threshold considerations must be tirelessly documented, confirmed, and indemnified in the deal process. There are always plenty of administrative details to attend to, such as updating legal entities, licenses, and registrations.

Financial integration

Combining financial operations is vital for reporting accurately, budgeting effectively, and realizing cost synergies. This may translate into integrating accounting systems and financial reporting frameworks and agreeing on the accounting treatment of each aspect of the resulting business. Financial integration becomes particularly important if key earnouts are staked to the KPIs established as part of the negotiations. It will not do the parties any service to haggle through detailed KPIs and a multi-part earnout strategy if they immediately walk into a stumbling block over a detail of revenue recognition or cost allocations among parts of the firm. Sound financial integration will provide the foundation for measuring merger success and ensuring clean deal administration.

Conclusion

Integrating two companies after a merger or acquisition is a delicate and intricate process that requires attention to strategic, operational, human, technological, legal, and financial dimensions. Each area discussed must be thoroughly addressed for the integration to succeed. Effective post-merger integration is not just about merging assets but about building a cohesive, unified organization that is greater than the sum of its parts. Companies that approach integration with a structured, strategic, and people-centric mindset are more likely to unlock the full value of the deal and position themselves for long-term success, and limit distractions, hiccups, and mishaps along the way. ♦

Barrister Banter: Catherine Meyer

The purpose of the series is to bridge the gap between junior and senior business lawyers in Oregon, fostering understanding and camaraderie. For this installment, we interviewed Catherine Meyer, General Counsel at Alliant Systems and Executive Committee member and Treasurer for the Corporate Counsel Section of the Oregon State Bar. Read on to learn more about her path to law, her current role, and what she’s learned about the field.

  1. Tell me about your path to being a lawyer. What inspired you to pursue this career? 

Late in my undergraduate studies, I figured out I was going the wrong direction. It was around then I discovered an interest in public policy, and it ultimately led me to start thinking about practicing law. And the more I thought about it, the more it made sense for me. I wanted a career that would challenge me for the long-term and provide opportunities for a stable future, and my friends and family all told me they thought I had the right personality for it.

  1. What is your practice area?

I am a corporate/commercial attorney working as the only in-house with a construction company—so, sort of a transactional commercial generalist with a strong construction component. In my role, I help guide one specific company through a variety of legal issues that arise for them, allowing me to customize my advice to their specific needs. This is a solid departure from law firm culture, where law firm attorneys keep their very detailed legal advice separate from advice related more to business goals or processes.

  1. How long have you been in your current role?

Just over a year.

  1. How have you seen the practice change since you started practicing?

AI definitely brings up a lot of changes, although it seems to affect some areas of practice more than others. It seems like a great tool for improving and economizing document discovery.

  1. What do you wish you had known before you started working as a new lawyer?

I wish I had known how long it can take for new lawyers to feel at all comfortable in the role and to find a position that is a good fit. For me, I didn’t really enjoy practicing law until I went in-house five years after passing the bar.

  1. What are your career highlights?

I ran my own very small firm before joining another firm. After practicing in Oregon for three years, I moved to British Columbia and became licensed there and in Washington. My first in-house position was with a multinational consulting company, and I gained more and more responsibility for the broad variety of topics that arise as part of a small legal team. I also learned to work with internal stakeholders with a business focus—a rather different dynamic from working in a private firm.

I am proud to highlight one particular achievement. When I was still in private practice, I had the unique opportunity to help hone the arguments that prevailed on an appeal to the Oregon Supreme Court. I worked on a small team to research extensive legislative history, and was part of final logistical discussions with appeals counsel as to how to build that research into the arguments that won the case.

  1. What is your favorite part of the job?

I love being a resource for my teammates, to help them succeed in their mission.

  1. What parts of the job do you wish you could outsource to AI?

This is a tough question because, right now, I don’t trust AI to give me the right information. I currently use it only to get me pointed in the right direction. As AI improves, I hope to see that it could help reduce the time needed to review contracts.

  1. What advice would you give a new business lawyer?

We are all always learning, so do not worry too much about what you don’t know. Find a mentor who will invest in your success, and focus on building skills.

  1. What advice would you give a senior lawyer who is charged with mentoring a new lawyer?

Ask a lot of questions of the new lawyer; don’t assume the new lawyer’s experience is what you think you remember of your early years. The most valuable advice will vary by person, and understanding the new lawyer’s experiences, goals, and concerns can help make a mentoring relationship much more meaningful. ♦

Balancing the Scales: How Lawyers Can Cultivate Health and Well-Being Today

Melissa Jaffe, Law Offices of Melissa B. Jaffe PC

Overall stress levels for men, women, and children in our culture have been steadily increasing for decades. We know that chronic stress results in measurable decreases in cognitive functioning and increases in long-term life-threatening illnesses, including cancer, heart disease, and diabetes. I know firsthand the importance of managing chronic stress. When I recently received a cancer diagnosis, my doctors agreed that it was imperative that I take steps to reduce my chronic stress in order to combat a recurrence of the diagnosis.

This article is a wake-up call for you, your colleagues, and your clients. For the legal industry, the call has been blaring for over a decade.

As business counselors, we are humans tasked with guiding other humans as well as corporations that have hundreds or thousands of humans working for them. How can we maintain our personal well-being while also handling the professional well-being of others?

The American Bar Association (ABA) and the state of Oregon have some thoughts on these matters. Let’s review quickly.

Where we started

In the mid-2010s, there wasn’t much data about substance abuse disorders and mental health concerns in the legal profession. To fill this gap and determine the scope of the problem, the ABA Commission on Lawyer Assistance Programs (CoLAP) partnered with the Hazelden Betty Ford Foundation to conduct the landmark survey of over 16,000 legal professionals (the Study). The Study examined alcohol use, substance abuse, mental health issues, and help-seeking behaviors. It revealed concerning insights, such as over one fourth of participants reporting mild to severe depression and nearly as many reporting using alcohol and drugs in a “problematic” manner.

The Study results were so alarming that in September 2017, then-President Hilarie Bass requested the ABA Board of Governors create an ABA Presidential Working Group to examine and make recommendations regarding the current state of attorney mental health and substance use issues with an emphasis on helping legal employers support healthy work environments.

“The number of lawyers struggling with these [mental health and substance abuse] issues is shocking. It is up to our profession to identify solutions to assist those already suffering, as well as to minimize those who will have to address these issues in the future. Instead of being disheartened, we should view this information as a clarion call. We need to change,” wrote President Bass.

The Working Group released their seminal report, “The Path To Lawyer Well-Being: Practical Recommendations for Positive Change,” including over forty-four specific recommendations for judges, lawyers, legal employers, insurance carriers, law schools, bar associations, and legal regulators. As of February 2025, nearly every state has created their own well-being taskforce. Summits, conferences, and third-party institutes have emerged over the past decade, and the legal industry appears to be truly committed to improving well-being.

Oregon’s role

Oregon has been doing its part to address the well-being of lawyers. Here is a brief timeline of key events:

  • 2018—The Oregon State Bar (OSB) and the Oregon Supreme Court adopted a continuing legal education requirement for mental health and substance use.
  • 2019—The OSB and the Oregon Attorney Assistance Program (OAAP) host a Wellness Summit.
  • 2021—OSB’s House of Delegates approved Delegate Resolution No. 5, which directed a Conference of Well-Being Stakeholders.
  • 2022—The Conference convened. During the conference, other Workgroups were formed to meet afterward and discuss topics such as structural impediments to well-being, reducing stigma, and lawyer education.
  • 2023—The Oregon State Bar Professional Liability Fund composed a Legal Industry Well-Being Workgroup Report. As stated in the report, and most notably for business lawyers, one of the 2022 Workgroups identified the following as immediately actionable steps: “training in, and support of, well-being in the workplace, and [addressing] the disconnect from purpose and meaning in the work for many in the profession.”

Next steps

Despite the strides being made in improving lawyer well-being, I learned during my time as a part of the Washington State Bar Association Wellness Taskforce that taskforces across the country are struggling with where to best find trainers and supportive confidential resources that are not immediately tied to a state’s bar. Not surprisingly, lawyers seem universally reluctant to use OAPP services due to a distrust of complete confidentiality and the risks posed to individual positions and status of firms due to the very real stigma against seeking help for substance abuse and mental health struggles. Similarly, law students fear they may not even be accepted into a state bar should they admit to needing support.

Luckily, there have emerged truly neutral, confidential, and independent options for firms and individuals that are seeking help and are unwilling to risk potential disclosures—third party coaches and wellness assessment providers, such as the Institute for Well-Being in Law, are becoming increasingly available.

Additionally, there are some initial steps that you can take as an individual or as part of a firm:

  • Check-ins—If you are in a firm, you can encourage quarterly check-ins with staff to see how they feel about their caseload, the ability to voice their opinions, and overall efficacy. These small check-ins can help staff feel important and heard within the firm culture. Solos have a slightly more challenging feat, as accountability and support are key to achieving wellness. Seek out the assistance of a coach or group of peers to meet regularly. The group might consider an event or meetup that does not include alcohol as the focus.
  • Take the pledge—The ABA Well-Being Taskforce released a pledge, which encourages firms and individuals to reflect upon their own well-being and the culture of their working environments. The pledge encourages attorneys and firms to review their values and work to bring their daily behavior in alignment with those values. Annually, the ABA requests a written submission of manifested action taken to achieve wellness goals, then publicizes pledge signatories. Most high-profile national firms have joined as signatories and re-commit annually. This simple act of self-reflection and accountability is the easiest way to commit to incorporating well-being into your practice. The pledge is designed to be more than “lip service;” rather, it’s an attempt to get billable-hour-hungry attorneys to slow down and prioritize their own well-being. Having a trained advisor assess attorneys and conduct firm-wide value statements (where the entire firm works together to synthesize its members values) is critical to improving corporate culture, including providing reflective and wellness-centered advice to clients.
  • Play—Taking time away from the intellectual challenges of career pressures is one of the most effective ways to regulate one’s nervous system. Anything that gets your mind and body out of a highly anxious and pressured space for at least thirty minutes a day counts as play, from baseball to improv comedy to board games. From a physical standpoint, walking for about 150 minutes a week can provide some stress relief. If you need to take a walking meeting, do it.
  • Mindfulness practices—Mindfulness includes allowing your mind to literally “let go” of thought and simply breathe. It’s harder than it sounds, and often beginners need some guidance. Luckily, you have an abundance of options—simply search for “mindfulness” in the app store on your handheld mobile device. Some of the most popular apps include JKZ Meditations, Headspace, Calm, and Insight Timer. One of my favorite practices to listen to the Sharon Salzberg’s Metta Hour Podcast while walking for thirty minutes daily. Just ten minutes of daily meditation is all it takes to change your brain. These easy-to-incorporate apps can change your life and help you achieve your goals of the ABA pledge.
  • Retreats—For those who feel they are ready for a big shift, mindfulness retreats for lawyers are some of the absolute best opportunities to reflect on one’s mental and behavioral patterns while receiving support in beautiful locations around the world. Mental health CLE credits, which are now required for Oregon lawyers, are becoming increasingly available for retreats. Multi-jurisdictional attorneys can often gain credit in multiple jurisdictions and gain an opportunity to see firsthand the difference mindfulness, self-reflective practices, and intentional journaling can have on your day-to-day life.

In my personal wellness journey after receiving my cancer diagnosis, I was absolutely blown away to read multiple studies and articles stating that making lifestyle changes is the best way to reduce risks for not only cancer but also other major ailments like cardiac disease and Alzheimer’s. After prioritizing meditation, daily walking, mindful listening, and other wisdom practices, I personally experienced greater concentration, better sleep, more enjoyment even in the most stressful situations, and an overall deeper connection to family, friends, colleagues, and acquaintances. Fundamentally, we owe our clients the best of ourselves. Personal wellness is critical to deliver that obligation. ♦