New Rules for Business in 2020

by William Haut, Densborn Blachly LLP

The start of 2020 brings new rules and regulations that may impact business and financial planning. To understand how these impact you, it is wise to consult with qualified legal, tax or other professional advisors. 

Joint Employment

The topic of joint employment is not necessarily one that excites business managers, but it is a topic that may arise more frequently as the manner in which businesses employ human capital continues to evolve. In light of the Department of Labor’s (DOL) recently announced final rule addressing joint employment under the Fair Labor Standards Act (FLSA), the following is a reminder about the joint employment doctrine and its potential impact on applicable employment practices.

  • Joint Employment Basics. Briefly, joint employment exists when an individual employed by one employer can also be considered employed by another employer. In this context, both employers are two independent entities, rather than related entities under common ownership and control. The relationship between an employer and a staffing agency supplying employees to the employer is a common situation giving rise to joint employment considerations. If a joint employment relationship exists, both employers must comply with various federal, state and local labor and employment laws with respect to their joint employees. For example, aggregation of the joint employees can result in application of certain laws to small employers that would not otherwise be subject to such requirements (for example, the 15-employee threshold under Title VII of the Civil Rights Act of 1964 prohibiting discrimination based on race, color, religion, sex or national origin, and the 50-employee threshold under the Family and Medical Leave Act).
  • New DOL Rule for FLSA. The DOL recently announced a final rule updating and clarifying its standard for determining joint employment status under the FLSA, which is the federal law establishing minimum wage, overtime pay, recordkeeping requirements and child labor standards. The final rule becomes effective on March 16, 2020. The DOL had not revised its standards in this area in over 60 years.
  • New Rule Basics. In short, the final rule is intended to provide guidance on joint employment status in two common joint employment scenarios. First, the new rule contains a four-factor balancing test for determining joint employment status in situations where one employer hires an employee to work, and another person simultaneously benefits from that work. Second, the new rule provides guidance for determining whether multiple employers are joint employers if they are sufficiently associated in situations where they employ the employee to work a separate set of hours in the same workweek. If the multiple employers are joint employers, they must aggregate the hours worked for each of them to comply with the FLSA. Because courts have considered guidance under the FLSA when faced with cases addressing other employment-related laws (the Family and Medical Leave Act, for example), courts may consider the guidance provided by this new rule in future joint employment cases.

Overtime – Increased Compensation Levels for Certain Exemptions

Effective Jan. 1, 2020, the minimum salary threshold (referred to as the “standard salary level” by the U.S. DOL) for employees to be exempt from federal overtime pay requirements as executive, administrative and professional employees increased to $684 a week (equivalent to $35,568 annually). Additionally, the total annual compensation threshold for the highly compensated employee exemption is now $107,432 and requires weekly pay on a salary or fee basis of at least $684. 

  • Administration of the Rule. Employers may use nondiscretionary bonuses and incentive payments, including commissions, that are paid at least annually, to satisfy up to 10% of the minimum salary threshold for exempt executive, administrative and professional employees. If, despite such payments, an employee’s salary falls short of the minimum threshold, an employer may make a final catch-up within one pay period after the end of that period (i.e., the next standard payroll payment made by the employer).
  • Update Exempt Classifications. Employers that have not already updated their exempt classifications to reflect the new minimum salary threshold should do so. Keep in mind that paying an employee on a salaried basis does not make the employee exempt; the salary component is just one part of the analysis. It is also important to ensure correct classification of individuals as employees versus independent contractors. The costs for misclassifying employees as exempt or non-exempt employees for overtime purposes, and as employees rather than independent contractors, can be substantial.

Retirement Planning

The Setting Every Community Up for Retirement Enhancement (SECURE) Act of 2019 was signed into law in December 2019. The Act and a recent appropriations act made significant changes to the rules governing employer-provided retirement plans and IRAs. Here are a few key highlights.

  • Required Minimum Distributions (RMDs). The age at which retirement plan participants, including IRA account owners, must start receiving RMDs increased from 70½ to age 72. This applies only to those reaching age 72 after Dec. 31, 2019.
  • Elimination of Stretch IRAs. Unless the beneficiary is an eligible designated beneficiary (i.e., surviving spouse, minor child, disabled or chronically ill individual), the account balance must be distributed within 10 years of the participant’s date of death. The 10-year rule applies regardless of whether the participant is receiving RMDs at the time of death.
  • Elimination of Age Limit on IRA Contributions. As long as an IRA account owner has earned income, he or she can continue to make IRA contributions. Previously, the individual could not make contributions after age 70½.

Densborn Blachly is here to support you with any questions related to these new rules and regulations. 

The information contained in this publication should not be construed as legal advice or opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are encouraged to consult your own legal counsel on any legal questions you may have concerning your particular situation. Please see our disclaimer.

Data Privacy Laws Could Have Big Implications on Indiana Businesses

by Brett Wilson, Mergers and Acquisitions Practice, Densborn Blachly LLP

Beginning Jan. 1, 2020, certain companies doing business in California will have to comply with what is now the nation’s strictest data privacy law – the California Consumer Privacy Act (CCPA). The CCPA is an extraordinary piece of legislation regulating the processing of personal data of California residents. If a business processes personal data of Californians and meets certain threshold requirements, the business will be subject to the new law and its potential penalties for non-compliance. Unintentional violations of the CCPA can result in a fine of $2,500 per person affected; a company’s misuse of 100 clients’ personal data would be a stiff civil fine of $250,000. On top of civil fines, the CCPA provides a private right of action for those affected by certain data breaches.

The CCPA is certainly the most onerous data privacy law in the U.S. and may become the benchmark for the future of U.S. data privacy regulation. U.S. data privacy laws have traditionally only applied to certain industries, such as financial and educational institutions or healthcare providers. In the wake of multiple public personal data privacy scandals and Europe’s adoption of its sweeping General Data Protection Regulation, the U.S. is rethinking how to regulate the processing of personal data. 

Members of Congress currently disagree whether a federal law should preempt stricter state laws or simply serve as the baseline requirement. In the meantime, a variety of data privacy bills have appeared in New York, Illinois, Maryland, Pennsylvania and several other states. While Indiana has not yet taken steps toward its own data privacy law, Indiana businesses will soon have to comply with other states’ laws or perhaps a new, all-encompassing federal law – and it’s in their best interest to start the process now.

Read the rest of the article on Inside Indiana Business here.

U.S. News – Best Lawyers® Names Densborn Blachly 2020 Best Law Firm

INDIANAPOLIS – U.S. News & World Report, in partnership with Best Lawyers®, announced today its 2020 “Best Law Firm” rankings, recognizing Densborn Blachly LLP as a “Best Law Firm” for the seventh year in a row. Of over 14,000 law firms reviewed, U.S. News – Best Lawyers® ranked Densborn Blachly “Best Law Firm” in Indianapolis the following 11 practice areas:

  • Business Organizations (including LLCs and Partnerships) – Tier 1 recognition
  • Corporate Law – Tier 1 recognition
  • Banking and Finance Law 
  • Copyright Law 
  • Information Technology Law
  • Technology Law
  • Trademark Law 
  • Insurance Law
  • Mergers and Acquisitions Law 
  • Patent Law 
  • Real Estate Law

The U.S. News – Best Lawyers “Best Law Firms” rankings are based on a combination of client feedback, information provided on the Law Firm Survey, the Law Firm Leaders Survey and Best Lawyers peer review. 

“We are grateful for the lawyers and other professionals we have assembled here at Densborn Blachly,” said Densborn Blachly Managing Partner David Blachly. “All have a passion for excellence and consistently work to provide the highest level of service. To our clients and colleagues who have advocated for our inclusion among the Best Law Firms, we humbly say, ‘Thank You’.”

View Densborn Blachly’s rankings by clicking here

About Densborn Blachly LLP
Densborn Blachly LLP is a partnership of respected business, real estate and litigation lawyers who are mission-driven to achieve desired client outcomes with energy, practicality, integrity and differentiating skill. Broad experience and deep business understanding enable Densborn Blachly lawyers to spot opportunities, thwart risks, and find solutions where others might fail to look. Learn more at

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Five Densborn Blachly Lawyers Named to 2020 Best Lawyers® List

Don Densborn recognized as 2020 Lawyer of the Year for Business Organization Law in Indianapolis

INDIANAPOLIS – Five Densborn Blachly LLP lawyers have been included in the 2020 Edition of The Best Lawyers in America, an annual publication highlighting the top legal talent in the United States. The Best Lawyers in America designation highlights the top five percent of practicing lawyers in the U.S. and is organized by state, city and practice area. 

“We are delighted that half of our lawyers have been named Best Lawyers®, and we have every reason to believe the others one day will be as well,” said Managing Partner David Blachly. “As a peer-reviewed designation, this is a highly coveted honor that means a great deal.”

Blachly received Best Lawyer® recognition in both the areas of Corporate Law and Insurance Law. His clients include mid-sized businesses and larger entrants in the insurance industry.

Don Densborn received recognition as a Best Lawyer® in the areas of Corporate Law, Mergers and Acquisitions Law, Banking and Finance Law and Business Organizations Law (including limited liability companies and partnerships). He was specially recognized by his peers as the 2020 Lawyer of the Year for Business Organization Law in Indianapolis. In prior years, Densborn has received Lawyer of the Year accolades in the areas of Business Organizations Law (2017 and 2018) and Banking and Finance Law (2017).

Alexa Woods, who engages primarily in real property conveyancing, leasing and finance, is perennially named a Best Lawyer® in the area of Real Estate Law.

Jim Coles’ broad intellectual property expertise gained him 2020 recognition in the areas of Patent Law, Copyright Law, Trademark Law, Technology Law and Information Technology Law. Coles was chosen Indianapolis’ Lawyer of the Year in Copyright Law in 2014 and 2019, Trademark Law in 2015 and Information Technology Law in 2016.

John Fleming, whose practice largely involves commercial and real estate financing transactions, received recognition in the areas of Commercial Transactions/UCC Law and Corporate Law.  

To learn more about The Best Lawyers in America and Lawyer of the Year visit

About Densborn Blachly LLP

Densborn Blachly LLP is a partnership of respected business, real estate and litigation lawyers who are mission-driven to achieve desired client outcomes with energy, practicality, integrity and differentiating skill. Broad experience and deep business understanding enable Densborn Blachly lawyers to spot opportunities, thwart risks, and find solutions where others might fail to look. Learn more at

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Media Contact:
Jennifer Erbacher
(812) 483-5124

IFLR1000 Ranks Densborn Blachly and Partner Top in Financial Law in 2019

Partner Brian Bouggy receives special recognition

INDIANAPOLIS – Global legal outlet, IFLR1000, announced today that Densborn Blachly LLP and partner Brian Bouggy are among the top law firms and lawyers in the world for financial and corporate transactional work. 

“It’s a tremendous honor to be among just seven Indiana law firms recognized by IFLR100,” said Managing Partner David Blachly. “More importantly, partner Brian Bouggy’s recognition by IFLR1000 is a testament to the high level of service and dedication he provides his clients.”

Bouggy, an experienced attorney who focuses on entrepreneurship, corporate finance and mergers and acquisitions, is one of only four attorneys recognized and ranked by IFLR1000 in the state of Indiana. He’s named a Rising Star in the areas of banking and mergers and acquisitions. 

IFLR1000 ranks law firms and attorneys in 120 jurisdictions based on transactional evidence, client feedback and peer feedback. In 2019, it recognized 2,000 firms and 14,000 attorneys around the world. It is the only international legal directory dedicated to ranking law firms and lawyers on the basis of financial and corporate transactional work.

Read more on IFLR1000 and the 2019 rankings. 

About Densborn Blachly LLP

Densborn Blachly LLP is a partnership of respected business, real estate and litigation lawyers who are mission-driven to achieve desired client outcomes with energy, practicality, integrity and differentiating skill. Broad experience and deep business understanding enable Densborn Blachly lawyers to spot opportunities, thwart risks, and find solutions where others might fail to look. Learn more at

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Media Contact:
Jennifer Erbacher
(812) 483-5124

James A. Coles Named 2019 Best Lawyers® "Lawyer of the Year" in Indianapolis Area.

Indianapolis, August 15, 2018 — Densborn Blachly, LLP attorney James A. Coles was recently recognized by Best Lawyers as the 2019 “Lawyer of the Year” for Copyright Law in the Indianapolis area.

Only a single lawyer in each practice area and designated metropolitan area is honored as the “Lawyer of the Year,” making this accolade particularly significant. These lawyers are selected based on particularly impressive voting averages received during the peer-review assessments.

Receiving this designation reflects the high level of respect a lawyer has earned among other leading lawyers in the same communities and the same practice areas for their abilities, their professionalism, and their integrity.

In addition to the “Lawyer of the Year” award, James A. Coles was also listed in the 2019 Edition of The Best Lawyers in America in the following practice areas:

  • Information Technology Law
  • Technology Law
  • Patent Law
  • Trademark Law

Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence.

4 Densborn Blachly, LLP Lawyers Named to 2019 Best Lawyers® List

Indianapolis, August 15, 2018 — Densborn Blachly, LLP is pleased to announce that 4 lawyers have been included in the 2019 Edition of The Best Lawyers in America. Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence.

Best Lawyers has published their list for over three decades, earning the respect of the profession, the media, and the public as the most reliable, unbiased source of legal referrals. Its first international list was published in 2006 and since then has grown to provide lists in over 75 countries.

“Best Lawyers was founded in 1981 with the purpose of highlighting the extraordinary accomplishments of those in the legal profession. After three decades, we are proud to continue to serve as the most reliable, unbiased source of legal referrals worldwide,” says CEO Phillip Greer.

Lawyers on The Best Lawyers in America list are divided by geographic region and practice areas. They are reviewed by their peers on the basis of professional expertise, and undergo an authentication process to make sure they are in current practice and in good standing.

Densborn Blachly, LLP would like to congratulate the following lawyers named to 2019 The Best Lawyers in America list:

  • David G. BlachlyInsurance Law, Corporate Law
  • James A. ColesInformation Technology Law, Technology Law, Copyright Law, Patent Law, Trademark Law
  • Donald K. DensbornMergers and Acquisitions Law, Banking and Finance Law, Corporate Law, Business Organizations (including LLCs and Partnerships)
  • Alexa WoodsReal Estate Law

Using the Debtor's Correct Name

According to a recent Indiana bankruptcy case, In re Nay, 563 B.R. 535 (S.D. Ind. 2017), missing one letter in a debtor’s name on a financing statement may alter a creditor’s secured status. In the case, MainSource Bank perfected a blanket security interest in Ronald Markt Nay (“Ronald”) and Sherry Nay’s (“Sherry”) assets, including, without limitation, farm equipment, by filing a financing statement with the Indiana Secretary of State. Subsequently, LEAF Capital Funding, LLC (“LEAF”) obtained purchase-money security interests in two pieces of Ronald and Sherry’s farm equipment (“PMSI Equipment”) which LEAF perfected by filing financing statements with the Indiana Secretary of State.

Sometime thereafter, Ronald and Sherry filed for Chapter 11 bankruptcy, and a priority dispute between MainSource and LEAF ensued. MainSource argued it had first-priority over all farm equipment, including, without limitation, the PMSI Equipment, because LEAF failed to correctly identify the debtor’s name on its financing statements. LEAF had incorrectly listed the debtor as “Ronald Mark Nay” instead of “Ronald Markt Nay”.

Under IC § 26-1-9.1-506, a financing statement is effective even if it has minor errors or omissions, unless the errors or omissions make the financing statement seriously misleading. Further, a financing statement that fails to sufficiently provide the name of the debtor in accordance with IC § 26-1-9.1-503(a) is seriously misleading. IC § 26-1-9.1-503(a)(4) specifically states that if the debtor is an individual with an unexpired driver’s license, a financing statement sufficiently provides the name of the debtor only if the financing statement provides the name of the individual which is indicated on the driver’s license. (Emphasis added).

The court found that LEAF’s failure to use the exact name shown on Ronald’s driver’s license in the financing statements (though likely inadvertent) was seriously misleading because it failed to comply with the Indiana statute which specifically requires the use of the name on an individual’s driver’s license.

This case demonstrates the importance of correctly identifying the debtor in a financing statement, as even the smallest of errors can leave a lender unperfected. For more information regarding financing statements or other lending matters, please contact Timothy Hurlbut at

Questioning the "Legal Limit" of Alcohol Licenses as Collateral

An alcohol permit is a liquor store owner’s most valuable asset. This begs the question: why can’t creditors take an enforceable security interest in an alcohol license?

Article 9 of the Uniform Commercial Code (“UCC”) governs the creation of security interests in personal property. Some states have enacted statutes which view alcohol licenses as a privilege rather than a property right. In Indiana, the general rule is that a permittee has no property rights in an alcohol permit. IC § 7.1-3-1-2. The court in Matter of Eagles Nest, Inc., 57 B.R. 337, 341 (Bankr.N.D.Ind. 1986) first addressed the relationship between the Indiana statute and Article 9 security interests. The court held that since licensees do not have property rights in their alcohol licenses, it is impossible for the licensees to grant enforceable Article 9 security interests in them. In coming to its decision, the court gave considerable deference to the state’s policies regarding alcohol control.

Other states have enacted statutes that explicitly preclude the creation of a security interest in alcohol licenses. For example, a California statute prohibits alcohol licenses from being pledged or transferred as security for a loan. Cal. Bus. & Prof. Code § 24076. A California bankruptcy court recently interpreted the statute to prohibit an alcohol license from being used as loan collateral. Smith v. C&S Wholesale Grocers, Inc. (In Re Delano Retail Partners, LLC), No. 11-37711-B-7, 2017 Bankr. LEXIS 2397 (Bankr. E.D. Aug. 14, 2017). In that case, the bankruptcy trustee sold a debtor’s alcohol licenses. The creditor argued the funds were subject to its security interest because the funds constituted proceeds of the alcohol licenses as general intangibles. The court disagreed and held that “in order for a liquor license or its proceeds to qualify as [a] general intangible under Article 9 in the context of a bankruptcy case, and thereby subject to a security interest as such, the liquor license must first qualify as personal property under state law.” Therefore, according to the court, a secured party does not have rights to the proceeds from a bankruptcy sale of the alcohol license.

While creditors may be unable to take a security interest in an alcohol license itself, creditors should be allowed to take a security interest in the proceeds from the sale of an alcohol license. Similar arguments have been successfully raised in the context of other government issued licenses.

For example, the Federal Communications Commission (“FCC”) previously took the position that broadcasting licenses were not assignable or transferrable. The FCC had long enforced a policy that prohibited a licensee from granting a security interest in an FCC broadcasting license. In re Merkley, 94 F.C.C.2d 829 (1983). The FCC’s rationale for enforcing the policy was that it was statutorily required to approve each broadcasting license applicant. If creditors were permitted to take a security interest in broadcasting licenses, the FCC reasoned, licenses could potentially transfer to the hands of new licensees without the FCC’s required approval.

However, the FCC’s position began to shift in the early 1990s. In 1992, the FCC considered the ability of creditors to take a limited security interest in FCC broadcasting licenses. 57 FR 14684. Then, in 1994, the FCC adopted a new policy which allowed creditors to take a security interest in the proceeds resulting from a FCC-approved sale of a broadcasting license. In re Cheskey, 9 F.C.C.Rcd. 986, 987 (FCC 1994). In Cheskey, the FCC reasoned a security interest in the proceeds of the sale of a license was different from a security interest in the actual license. In the former, the licensee’s creditor would have rights only to the money or assets received in a sale of the license rather than rights to the license itself. Id.

Numerous courts have since adopted the FCC’s position. For example, the Ninth Circuit permitted a security interest to be taken in the proceeds of an FCC broadcasting license and held that such a security interest constitutes a general intangible that may be perfected prior to the sale of the license. MLQ Inv’rs. Ltd. P’ship v. Pac. Quadracasting, 146 F.3d 746, 748-49 (9th Cir. 1998). Similarly, in the Eleventh Circuit, the court held a creditor may hold a security interest in the proceeds from the bankruptcy sale of the FCC broadcasting license. Beach Tv Ptnrs v. Mills, 38 F.3d 535 (11th Cir. 1994).

Legislators should look to the approach taken by the FCC and appellate courts to permit security interests in the proceeds generated from the sale of broadcasting licenses and put forth laws applying that approach in the context of alcohol licenses. Permitting creditors to take a security interest in the proceeds from a sale of an alcohol license would allow liquor store owners to use one of their most valuable assets to obtain secured financing while maintaining the integrity of existing state alcohol regulations.

For more information, please contact Timothy Hurlbut at

Can Banks Keep Up With The Joneses?

The banking industry’s business model has traditionally centered on holding consumer’s money. For banks to make money, they have to hold on to that money. But with the growth of e-commerce, the traditional banking model could face some challenges. Today’s consumers want their money, and they want it now. So in order to stay relevant, banks may need to revamp and innovate the way they do business.
Click here to read the full article.