Table of Contents

In late 2021, a variety of factors—including the evolving COVID-19 pandemic, a landmark federal Infrastructure Investment and Jobs Act, new federal white collar regulations and more—were creating an economic landscape significantly different from just months before. With that in mind, Womble Bond Dickinson launched the Opportunity Economy thought leadership series, in which Womble Bond Dickinson attorneys and expert guests explored changes and challenges in this quickly-evolving economy.  The articles in this white paper are based on episodes of Womble Bond Dickinson’s “In-House Roundhouse” podcast, hosted by Mark Henriques.

Introduction

In November 2021, the long-anticipated Infrastructure Investment and Jobs Act became law, pumping $1.2 trillion into the economy in order to rebuild the nation’s infrastructure and improve economic competitiveness. 

At the same time, the global economy continues to rebound and adapt to the COVID-19 pandemic. While continued supply chain issues and the new Omicron variant may create complications in early 2022, the U.S. economy continues its rebound from the depths of the pandemic in 2020. For example, the number of Americans filing for unemployment benefits fell to their lowest levels in more than 50 years in late November—an indication of the economy’s overall health. 

Insider Perspectives on Opportunity Economy Trends

Commercial real estate is one such area for opportunities, particularly in the industrial, warehousing and multifamily residential sectors. Womble Bond Dickinson attorneys Nellie Shipley Sullivan and Charlie McCurry take a look at commercial real estate leasing in the current recovery period, and what opportunities and challenges companies should be aware of.

The M&A sector is just as hot as industrial real estate, with transaction levels reaching record levels in 2021. The country’s overall economic strength, combined with available capital, has created a thriving market for corporate transactions. Womble Bond Dickinson Corporate and Securities attorneys D. Scott Anderson and Dean Rutley take a look at the reasons for the M&A boom—as well as how companies can best capitalize on a boom market.

Intellectual property is an area with seemingly unlimited growth in a digitally-driven economy. Universities are particular areas for innovation, and Womble Bond Dickinson IP attorney Dr. Chris Mammen joins innovation leaders from two of the world’s leading research universities (Oxford’s Dr. Mairi Gibbs and UC Berkeley’s Dr. Rich Lyons) for a transatlantic conversation on the value of innovation and intellectual property in the Opportunity Economy.

The pandemic led to a boom in telehealth use—and that trend looks to continue during the recovery period and beyond. Womble Bond Dickinson attorneys Alissa Fleming and Toni Peck work closely with healthcare providers and discuss the regulatory, legal and business issues surrounding expanded telehealth usage.

The aforementioned Infrastructure Investment and Jobs Act not only addresses the nation’s traditional infrastructure needs, such as roads and bridges, but it also sets aside billions of dollars to expand broadband internet to the nation’s rural and underserved areas. Womble Bond Dickinson Communications, Technology & Media attorney Carri Bennet has closely followed the development of the legislation and says it provides both short-term opportunities for broadband infrastructure build-out as well as long-term benefits for improving the nation’s economic competitiveness.

Infrastructure expansion also will drive government contracting, and Womble Bond Dickinson attorneys Suzanne Boehm and Sarah Motley Stone, along with Berkeley Research Group’s Mary Karen Wills, take a look at these opportunities. They also examine the unique challenges related to working with the federal government.

But opportunity always comes with risk, and one risk in the Opportunity Economy is tighter federal white collar criminal enforcement. Womble Bond Dickinson White Collar Defense attorneys and former high-level Department of Justice officials Luke Cass and Joe Whitley explore how the Biden Administration has made corporate fraud enforcement a priority.

Likewise, the Biden Administration also is ramping up antitrust enforcement. Womble Bond Dickinson Business Litigation attorneys David Hamilton and Sarah Motley Stone review the federal government’s newly aggressive stance on wage suppression and examine what companies need to do to avoid potentially costly violations.

Finally, Womble Bond Dickinson attorney Mike Ingersoll and UNC School of Law Professor Barbara Osborne take a look at one particular corner of the Opportunity Economy—the shifting status of amateur athletes. Recent National Labor Relations Board actions may create new opportunities for college athletes—and compliance challenges for universities. But as often is the case in the Opportunity Economy, many questions remain….

 

The Recovery and Commercial Real Estate Leases

Authors: Nellie Shipley Sullivan, Charlie McCurry 

Few historical events have reshaped commercial real estate as quickly as the COVID-19 pandemic did in March 2020. In some sectors, such as office and retail, the shift to work-from-home and stay-at-home meant new swaths of empty towers and storefronts. But in other economic segments, companies scrambled to find enough space to meet increased demand.

So where does the commercial real estate market stand in late 2021 and what is the outlook in 2022? Commercial real estate is a broad sector and the answer to that question largely depends on sector and location.

Key Takeaways

  • In general, office and retail space continue to face challenges, while industrial, warehousing and multifamily residential real estate is booming. Location and sector always are key factors in determining the status of a real estate market.
  • The pandemic didn’t change commercial real estate trends as much as it accelerated trends that already were developing.
  • The post-pandemic office environment is likely to be a hybrid of in-person and at-home work. Also, hoteling—shared work space replacing designated personal offices—could be a growing trend rather than a fad.
  • Companies should give careful consideration to future real estate needs before making any long-term decisions. The work environment is likely to change again in the next couple of years, which could prompt further changes in commercial real estate needs.

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M&A Trends in the Opportunity Economy

Authors: D. Scott Anderson, Dean Rutley

No doubt about it—mergers and acquisitions are taking place at a feverish pace, going back to the second half of 2020. 

“Over the course of my 35 years, I’ve never seen anything like this,” Rutley said. “I personally thought COVID in March and April of 2020 would be a huge dampener on M&A activity, but unlike previous events, such as the economic crisis in 2008-2009, the hit to M&A by COVID proved to be temporary. Instead of seeing a decline in my M&A practice, I’ve had my largest year of M&A deal volume and deal value in my entire career. It’s not unusual for my teams to currently have 9-12 deals going at once.”

Rutley points to a healthy stock market, the availability of cheap debt, low interest rates, and upbeat forecasts in such sectors as technology, healthcare and financial services as the drivers of increased deal volume.

"My father always said, 'Success is when preparation meets opportunity,' and that's true in M&A. That means being willing to move fast and efficiently, and being prepared beforehand." Dean Rutley, Partner

Key Takeaways:

  • The M&A market is at a record pace in 2021, with a variety of factors (a thriving stock market, available debt, vaccines fueling a pandemic recovery, low interest rates, etc.) driving this growth.
  • Representations and warranties insurance is increasingly important, as it allows buyers and sellers to focus on bigger-picture M&A issues and close more quickly.
  • Parties need to be aware of employee classification (exempt or non-exempt), contractor classification (whether individuals are properly classified as employees or independent contractor), IP ownership disputes, data security concerns, the use of offshore contractors and state/local tax compliance, among other issues, when conducting M&A due diligence.
  • The renewed federal push on antitrust compliance and a tight talent market are potential challenges, but the M&A market looks to remain hot going into 2022.

Click here to read the full article

The Value of Innovation and Intellectual Property in the Opportunity Economy

Authors: Dr. Chris Mammen, Dr. Mairi Gibbs (Chief Operating Officer, Oxford University Innovation), Dr. Rich Lyons (Chief Innovation & Entrepreneurship Officer, UC Berkeley)

If ideas are the fuel of the Opportunity Economy, universities are the oil wells and refineries where ideas transform into innovation. Such innovations—with the power to transform lives and improve society—are the most valuable commodities a business can have. 

As scientists at research universities focus on developing such life-changing ideas, intellectual property attorneys and business development professionals at the same universities work to protect these innovations and introduce them into society at large. In the Opportunity Economy, innovation and intellectual property matter more than ever.

Key Takeaways:

  • University research is focused on long-term, widespread society impact. Increasingly, research institutions are leveraging the free market economy to advance and promote the work researchers are doing. The Oxford/AstraZeneca COVID-19 vaccine is one shining example of a research university working with the private sector to effectively address a major public health challenge.
  • IP rights are a critical component of monetizing innovation. However, IP protections can be at odds with academic concepts of open source knowledge and peer-reviewed publication. Universities must work across departments to serve all stakeholders.
  • Creating a university ecosystem that supports innovation goes far beyond the research departments. Universities that are successful in this effort, such as Oxford and UC Berkeley, partner closely with the business community.
  • Climate change and interdisciplinary convergence (in which innovators from completely different backgrounds collaborate) are likely to be the next “Big Challenges” at the forefront of university innovation efforts, according to Gibbs and Lyons. 

Click here to read the full article

 

Telehealth in the Pandemic—and Beyond

Authors: Alissa Fleming, Toni Peck

The telehealth boom during the COVID-19 pandemic impacted nearly every American. Changes made during the public health emergency promise to permanently transform the delivery and availability of healthcare. While these changes were made in rapid response to the pandemic, providers and patients alike discovered that telehealth—providing healthcare remotely via technology—offers advantages and efficiencies that make sense to continue even as the pandemic ends.

Healthcare is perhaps the most highly regulated sector of the economy, so extending telehealth post-pandemic will require regulatory reform as well as consumer demand.

"Telehealth has been crucial in the past 18 months, especially in championing healthcare equity. We are better able to reach underserved populations, including rural populations, with telemedicine." - Toni Peck, Partner

Key Takeaways:

  • Telehealth greatly expanded during the COVID-19 pandemic, in large part due to regulatory waivers. Those regulatory waivers aren’t permanent, but lawmakers are evaluating ways to permanently expand some aspects of telehealth coverage. 
  • While the HHS OIG recognizes the importance that telehealth plays in our healthcare system and will continue to evaluate new telehealth policies and technologies, it will also strive to ensure that they are not compromised by fraud, abuse, and misuse.   
  • Access remains an issue, as millions of Americans lack either the broadband access or technical know-how to employ telehealth resources.
  • Through recent telehealth policies and funding, the government is working to improve healthcare equity and resources for telehealth.  

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Broadband Expansion Under the Infrastructure Investment and Jobs Act

Author: Carri Bennet, Jeff Lanning, Stephen Sharbaugh

Infrastructure in the 21st Century encompasses more than roads, bridges and dams. The Opportunity Economy depends on a vast network of fiber, cable, spectrum, towers and equipment that provide a stable, speedy internet connection that future proofs these wired and wireless networks.

The Infrastructure Investment and Jobs Act signed into law in November 2021 not only addresses traditional infrastructure needs, but also provides $65 billion to provide ubiquitous nationwide broadband coverage.

The broadband components of the Infrastructure Investment and Jobs Act are a potential game-changer that stand to greatly benefit not only rural residents, but the nation’s overall economic competitiveness.

Key Takeaways:

  • The Infrastructure Investment and Jobs Act provides $65 billion to upgrade US broadband coverage.
  • Rural broadband providers using both fiber and wireless technology have an opportunity to expand in unserved and underserved rural areas.
  • The Act only provides funding for construction, not maintenance for operations.
  • Actual construction work isn’t likely to begin until late 2022, and these projects will take years to complete.

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Government Contracting Challenges and Opportunities with the Infrastructure Act, Supply Chain, and Beyond

Authors: Suzanne Boehm, Sarah Motley Stone, Mary Karen Wills (Managing Director, Berkeley Research Group)

Modernizing the nation’s infrastructure will create jobs and opportunities for companies to win a wide range of new federal contracts. But the federal government can be a demanding business partner. Companies that enter into such contracts need to know about the terms and conditions unique to federal government contracting.

Key Takeaways:

  • The new $1.2 trillion infrastructure bill will provide Government contracting opportunities for companies in a wide range of sectors. 
  • Industry insiders believe these the bill will create opportunities for companies not currently selling to the federal Government and new small businesses to bid for U.S. Government contracts.
  • However, many companies struggle with federal compliance requirements. Government contracts are highly detailed, can be difficult to decipher, and often incorporate additional requirements by reference.  They must be strictly adhered to by prime contractors and often, their subcontractors. Companies need skilled guidance in Government contracts when bidding, executing and performing.
  • Government contractors face a mandate to self-report credible evidence of potential violations of certain civil and criminal violations, a unique requirement that commercial contractors outside the federal acquisition world do not face.
  • Supply chain issues remain a concern. Companies are well-advised to seek to mitigate that financial risk in supply chain agreements.

Click here to read the full article.

 

Biden Administration Prioritizes Corporate Criminal Enforcement

Authors: Luke Cass, Joe Whitley

Nothing keeps corporate executives up at night quite like the threat of white-collar criminal charges. While other forms of wrongdoing or mistakes can cost the company money, white-collar charges can result in actual jail time for company leaders. DOJ has renewed its focus on prosecuting individuals for corporate crimes.

Federal white-collar enforcement priorities typically change when there is a new administration in Washington, and that certainly is the case in 2021, with the Biden Administration implementing its own set of compliance priorities and enforcement emphases.

"Under the Biden Administration, you've seen a renewed focus on white-collar enforcement. There's a lot of tough talk and they're getting ready for task forces and investigations in a number of areas." - Luke Cass, Partner

Key Takeaways:

  • In recent remarks, top DOJ officials stated that DOJ will “surge resources” and “redouble efforts” for corporate enforcement.
  • Areas of particular concern include the Foreign Corrupt Practices Act, government contracting fraud, financial fraud, tax issues, and energy pricing benchmark manipulation.
  • Strong compliance programs must be top-down, with C-suite executives emphasizing the importance of compliance. 
  • Should problems occur, the first call always should be to legal counsel, and every company should have a plan in place to address a possible criminal investigation. An active crisis is not the time to formulate a plan.

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Risks in Antitrust Enforcement

Authors: David Hamilton, Sarah Motley Stone

There is now a renewed federal emphasis on antitrust enforcement. The Biden administration has made economic competition and wage suppression points of emphasis. Given that virtually any routine business activity potentially can involve antitrust issues, company leaders and their legal counsel need to be aware of how antitrust law is changing and how they can best avoid running afoul of federal regulators.

Key Takeaways:

  • The Biden Administration’s recent executive order takes a hard line on limits to employment mobility, such as non-compete agreements.
  • Several high-level federal appointments give further indication that the Administration plans to be far more aggressive in antitrust enforcement.
  • No-poach agreements—companies agreeing not to recruit each other’s employees—and wage-fixing are a particular target of the federal focus on antitrust.
  • Companies should take proactive steps, including reviewing employment contracts, reviewing M&A due diligence guidelines, establishing an antitrust compliance program, and ensuring HR professionals are informed about antitrust risks.

Click here to read the full article.
 

NLRB, Labor Laws and the Impact on NCAA Athletes

Authors: Mike Ingersoll, Professor Barbara Osborne (UNC School of Law)

Just when you think you have all the answers about college athletes as employees, the National 
Labor Relations Board changes the questions.

NLRB General Counsel Jennifer Abruzzo’s September 2021 memorandum states that her office will consider some college athletes to be employees moving forward. But a number of significant questions—including whether Abruzzo’s memo has the full support of the NLRB—remain unanswered.

"At the point where you get favorable state and federal decisions in court, you get some teeth behind this notion of athletes as employees." - Mike Ingersoll, Attorney

Key Takeaways:

  • A new memo from the NLRB GC says that some college athletes will be considered employees, giving them the right to unionize. But the memo raises more questions than answers.
  • One unanswered question is which athletes are covered by the memo? The memo is unclear as to whether it applies only at private colleges, and which sports are covered.
  • Also, does the memo open up the possibility of athlete compensation? And if athletes are able to unionize, may they collectively bargain NCAA rules and requirements?
  • The NLRB, as a governing board, has yet to adopt the GC’s memo. But the memo may prompt federal legislation that would give greater clarity—one way or another—on the “student-athletes as employees” question.

Click here to read the full article.