27 minute read
Guest Columns
GUEST COLUMN Matthew T. Nelson and DeAndre’ Harris
SCOTUS to rule on OSHA vaccine directive
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The U.S. Supreme Court was scheduled to hear oral arguments in a case that will have signifi cant ramifi cations for employers and employees: Whether to stay the Occupational Safety and Health Administration’s emergency temporary rule that employers require all employees to be vaccinated against COVID-19 or undergo weekly testing for the disease.
The Supreme Court took the exceptional step of scheduling oral arguments on the motion to stay the OSHA rules a mere three weeks after the U.S. Court of Appeals for the Sixth Circuit put the issue back into play. That speed is extraordinary in any case, but almost as rare as airborne swine for a procedural motion of whether the high court should reinstate a stay on the OSHA rules.
Here, the Supreme Court’s unusual haste is driven by several unique factors.
First, the case addresses the validity of the federal government’s most controversial e ort to address the COVID-19 pandemic. When OSHA published its Emergency Temporary Standard, or ETS, in November 2021, the agency noted “COVID-19 has had a devastating impact on workers.” To date, more than 800,000 Americans have died from COVID-19 since the pandemic began in 2020, prompting OSHA to “take action to implement this emergency temporary standard to contain the virus and protect people in the workplace against the grave danger” of the coronavirus.
The ETS mandated COVID-19 vaccinations or weekly testing for most employees of employers with 100 or more workers. But when OSHA published on Nov. 5, 2021, the response was immediate — and divisive. The fi rst legal challenge was fi led within hours of OSHA’s publication of the new rule. The ETS was challenged in multiple jurisdictions, racking up nearly three-dozen lawsuits across the country. In some of those lawsuits, the parties challenging ETS asked the courts to stay enforcement by OSHA.
Second, the stay issue has generated numerous lengthy and confl icting decisions that address the merits of whether OSHA has the authority to issue the ETS. Historically, OSHA has had a hard time convincing courts that its exercise of emergency rulemaking is permissible. ETS has proven no exception. Despite the quick pace of the ETS cases, the path to the Supreme Court has been a saga.
Within days of the rule being issued, the U.S. Court of Appeals for the Fifth Circuit noted “grave statutory and constitutional issues” in deciding to pause the ETS. The Fifth Circuit panel wrote an opinion explaining why OSHA was unlikely to prevail in the case. The decision and a concurring opinion totaled 22 pages.
A few days after that, federal rules dealing with “multi-circuit litigation” required the cases be consolidated and heard by one court chosen by lottery. That turned out to be the Sixth Circuit, which represents Michigan, Ohio, Kentucky and Tennessee, which was chosen on Nov. 16 to review the cases. So, the Sixth Circuit inherited not only a truckload of cases but also the Fifth Circuit’s stay ruling.
Groups challenging the ETS apparently concluded they stood a better chance if the case was heard by the entire Sixth Circuit sitting en banc — as a court of 16 judges. Most cases are decided by threejudge panels. So, these groups petitioned the Sixth Circuit to do something very unusual: hear the case en banc before a typical three-judge panel had rendered a decision. This procedure is little used, with “little” meaning “never.” Nonetheless, eight Sixth Circuit judges wanted to take the case en banc. Alas, that was one vote short of a majority.
But the order denying en banc review was accompanied by a 27page opinion by Chief Judge Je rey Sutton that was joined by seven
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MI VIEW WEST Garth Kriewall Michigan journalist, kriewall@hotmail.com
Grab the checkbook! There’s a sighting on Linden Avenue!
GUEST COLUMN
David Van Andel
Harness the power of collaboration for betterment of humanity
When the clock struck midnight on Dec. 31, Van Andel Institute’s 25th anniversary year drew to a close. As we refl ect on this milestone in our organization’s history, we are more grateful than ever for the community that has embraced us and helped make our achievements possible.
Inscribed on a plaque in our lobby are the words of Margaret Mead: “Never doubt that a small group of thoughtful, committed individuals can change the world. In fact, it’s the only thing that ever has.” As an independent research organization, Van Andel Institute is relatively small — but we are committed to the pursuit of big, bold ideas. West Michigan’s spirit is the same; although we are not a big city like New York or Chicago, our people have vision that surpasses even the largest locales. Twenty-fi ve years ago, Grand Rapids was relatively unknown. Today, we are nationally recognized as a desirable place to live, work and play.
Around us on the Medical Mile, there are even more signs of innovation. In 2017, Michigan State University opened the Grand Rapids Research Center. From our vantage point on Michigan Street, we are watching MSU’s Grand Rapids Innovation Park grow by the day. In the other direction, Grand Valley State University’s Daniel and Pamella DeVos Center for Interprofessional House is now open to students. Over the past quarter-century, the West Michigan community has become a life sciences hub that attracts talent from all around the world.
In November, fi ve VAI scientists were named to the 2021 Clarivate Highly Cited Researchers List — a distinction marking them as leaders in their fi elds. In the last year alone, we recruited six top-tier scientists to join our faculty. From up-and-coming stars to established experts in their fi elds, each one adds to the critical mass of scientists needed for a vibrant life sciences community. And, importantly, these six labs will bring jobs and federal research grants into the West Michigan economy.
The work of our top-notch faculty are at the forefront of these e orts, and their work is underpinned by the Institute’s stateof-the-art Core Technologies and Services — a collection of departments that o er specialized support for scientists both at VAI and collaborating organizations across the globe. These services, which include cutting-edge technology and deep expertise, are integral in bolstering our partnerships and putting VAI and Grand Rapids on the map for world-class biomedical research.
VAI scientists are working hard every day, leveraging the collective strength of global collaborators to address serious health challenges like cancer and Parkinson’s disease. Ongoing projects include an exploration of how diet and metabolism infl uence the immune system’s ability to fi ght infections and disease; research into improved therapies for cancer; and a study that will seek to answer the question of whether
LETTERS POLICY: The Business Journal welcomes letters to the editor and guest commentary. Letters and columns must include the writer’s name, address and telephone number. Guest columns do not necessarily reflect the philosophy of the Business Journal. Letters and columns may be edited for reasons of space or clarity. Please submit to: The Editor, Grand Rapids Business Journal, 401 Hall St. SW, Suite 331, Grand Rapids, MI 49503 or email bjletters@grbj.com.
we would be the same person if we were born multiple times under the exact same circumstances — referred to as the “two yous” project.
As much as we celebrate our growth, we know that there is no “going it alone” in science. We all have a role in developing breakthroughs that transform the way diseases are diagnosed and treated, whether that’s health care providers, scientists or the many people who make our work possible. We remain mindful of the countless challenges that face our community, our country and our world — knowing that when we work together and leverage each of our strengths for the betterment of humanity, there is no doubt that we will succeed.
David Van Andel is chairman and CEO of Van Andel Institute.
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GUEST COLUMN Ryan Diepstra How to make retirement goals you actually can keep
Anew year is synonymous with new hopes, dreams and goals.
Now that we are 10 days into 2022, how are your New Year’s resolutions going? Have you dusted off the old treadmill and are you exercising 30 minutes each day? Have you been able to resist the leftover cookies and chocolates from the holiday season? Are you eating more fruits and vegetables and less pizza and hamburgers? Are you spending less time on your phone, mindlessly scrolling though apps? Have you finally cleaned up your basement and donated items that you haven’t used in a decade?
I ask these questions because exercising, eating healthier, spending less time on electronic devices and getting organized are consistently some of the top New Year’s resolutions each year. But we all know most resolutions fail by February. Why? Long story short, it’s because of a lack of a proper plan and little to no accountability.
While these all are great aspirations to have, I’d like to focus on one resolution that often gets missed — retirement investment goals. I know this isn’t the most exciting topic in the world, but the difference between a strong plan and disorganization could significantly impact your retirement date, lifestyle and legacy.
This is easy to achieve and stay on track, but it requires a significant amount upfront work. The first step is sort of like cleaning out your garage. Take everything out, sweep the floors, and figure out which belongings you would like to keep, sell, give, or throw away. Similarly with your investments, gather all your recent statements and lay it on your kitchen table. Sit down with your spouse and calculate exactly what you own, why you own it, and the overall purpose of each investment.
Next, evaluate your current expectations, concerns and lifestyle. An example of an expectation is estimated retirement expenses. Concerns include cost of health care, volatility in the market and parents needing care. Each topic warrants a conversation and assessment of how it will impact your retirement plan.
An evaluation of lifestyle is figuring out which date you would like to retire, monthly income needed and how long you think you’ll live. The U.S. Social Security Administration has a life expectancy calculator on its website that can show you the average number of additional years a person can expect to live, based on gender and date of birth. This website also has a few calculators to quickly figure out your estimated earnings and benefits.
Finally, the fun part begins with an exercise of thinking of all the needs, wishes and wants you desire in a perfect retirement. A few examples include a new home, vacations, new car, health care, donations, helping aging parents, helping children and grandchildren with school, and home improvements. Each of these have a different level of importance and estimated date. Write down a rough timeline of each item, dollar amount, and rank them 1-10 with 1-3 a wish, 4-7 a want, and 8-10 a need.
Now that you’ve got a good handle on what your retirement will look like, let’s go back to your financial statements and take a closer look at each investment and if they align with your goals, risk tolerance, liquidity needs and overall plan. There are several rudimentary online resources for this as well, but I would encourage you to work with a financial adviser who has the tools and experience to guide you on a financial roadmap and hold you accountable to keeping this resolution indefinitely.
Ryan Diepstra is a principal and COO at Centennial Securities. He can be reached at ryan@centennialsec.com or (616) 942-7680.
SCOTUS to rule on OSHA vaccine directive
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of his colleagues. Sutton explained that OSHA was exceeding its statutory authority by, among other reasons, addressing risks outside of the occupational context. The Sixth Circuit’s opinions on denying en banc ran to 42 pages.
Just two days later, a Sixth Circuit three-judge panel issued three more opinions resulting in a 2-1 decision to dissolve the Fifth Circuit’s stay ruling and let the OSHA ETS go into effect. Judge Jane B. Stranch wrote “the ETS is an important step in curtailing the transmission of a deadly virus that has … brought our health care system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs.” Another judge concurred, while Judge Joan Larson sharply dissented, re-emphasizing that OSHA was exceeding its statutory authority. The opinions landed at 57 pages.
After 121 pages of opinions on whether OSHA is likely to succeed in imposing the ETS, the U.S. Supreme Court could reasonably conclude it had heard all it needed to from the lower courts.
Third, the ETS is time sensitive. OSHA published the standard during the height of the delta variant, but omicron already is causing record numbers of infections. OSHA set Jan. 10 as the deadline for employer compliance. But with the delays caused by the litigation, OSHA is exercising enforcement discretion with respect to the ETS deadlines.
To provide employers with enough time to comply with the now-effective ETS, OSHA announced it will not issue citations for noncompliance with any ETS requirements before Jan. 10 — and will not issue citations for noncompliance with the testing requirements before Feb. 9 “so long as an employer is exercising reasonable, good faith efforts to come into compliance.” Nonetheless, the Supreme Court is hustling in part because the Jan. 10 deadline will affect a vast swathe of the American population and economy.
So, when can we expect a ruling? Given the Supreme Court’s haste and its decision to set oral argument on the motion for stay, it’s reasonable to think that the Court will issue its decision within a few weeks.
And what will the Court decide? There are some hints from the decisions in the lower courts. Every Trump-appointed judge to consider the ETS concluded OSHA had overstepped its statutory or constitutional bounds. With three exceptions, the judges who addressed the stay in the courts of appeals split along party lines with judges who were appointed by Presidents Clinton and Obama voting directly or indirectly to dissolve the stay and most judges appointed by Presidents Bush, Bush and Trump voting directly or indirectly for the stay.
The Supreme Court has three justices appointed by Democratic presidents and six by Republican presidents. Further, the jurisprudential philosophy of a majority of the justices on the court is closer to that of Chief Judge Sutton than to Judge Stranch.
Finally, there’s the fact the Supreme Court has taken the case at all. If a majority on the Court was inclined to uphold the ETS, then there was no reason to take the extreme measures of scheduling a special oral argument on a motion for stay.
Matt Nelson chairs the Appellate and Supreme Court Practice at Warner Norcross + Judd LLP and DeAndre’ Harris concentrates his practice in labor and employment law. They can be reached at mnelson@wnj.com and dharris@wnj.com.
House, Senate lawmakers push for early parole reform
The two separate proposals essentially would reward prisoners for good behavior.
Emerson Wigand
Capital News Service
LANSING — Michigan prison policy fails to consider good behavior and rehabilitation when it comes to parole, some advocates say.
Without rehabilitation, prison time can be pointless, said Rep. Tyrone Carter, D-Detroit. Carter is a sponsor of legislation intended to allow more consideration of prisoner self-improvement efforts rather than focus on time served.
“If you take your car to the car wash and it comes out dirty, what’s the point?” Carter said. “Similarly, if people come out of a system the same way or worse, we failed them and we failed society.”
That’s why House and Senate lawmakers have introduced bills to allow sentence reductions by the Department of Corrections of up to 20% for good behavior or participating in rehabilitative programs. The bills use different methods to reward inmates’ good behavior and productivity.
The Senate sponsor, Sen. Jeff Irwin, D-Ann Arbor, said he hopes it will work with the House package to make this change. The bills would open doors shut by the Truth in Sentencing law, Irwin said.
In 1998, voters passed Truth in Sentencing. It requires some inmates to serve their minimum sentences before they can be considered for parole.
Many of these people are not dangerous, and their release could save millions of tax dollars, Irwin said.
The Michigan Association of Chiefs of Police opposes changes to Truth in Sentencing, said Robert Stevenson, executive director.
“We don’t think it’s needed, and we don’t think it’s fair,” Stevenson said.
The law is needed to ensure uniformity, Stevenson said.
Before Truth in Sentencing, sentences for the same crime could vary widely based on location and the Corrections Department could reduce time served beyond prisoners’ minimums.
Stevenson said the proposed changes would take away judges’ discretion and are unfair to victims.
“It’s hard to get into prison in Michigan, believe it or not,” Stevenson said. “You really do have to do some pretty serious violations, and multiple, to get into prison.”
Therefore, the proposal would really impact only violent offenders, Stevenson said, and prisoners should be kept for at least their minimum sentence, he said.
But Irwin said Michigan does a poor job distinguishing which people are violent. Additionally, the state has a high population of elderly prisoners whose release likely wouldn’t pose a safety threat.
Parole relies too much on the release.
Carter said the House and Senate bills attempt to do that in different ways, but both want the same thing The House package would introduce “productivity” credits, based on participation in rehabilitative programs.
These programs are to prepare prisoners for release as rehabilitated members of society. That could involve obtaining a GED, higher education or skills in a particular trade.
Irwin’s bill would motivate prisoners by offering “good time” credits, which are given for good behavior and avoiding trouble.
Priscilla Bordayo, coordinator of Lansing’s chapter of Crime Survivors for Safety and Justice, agrees that good behavior should be rewarded. As a victim of crime, Bordayo believes mercy and justice must go hand in hand.
“I believe that they should
Priscilla Bordayo
Interest in hunting, fishing licenses remains high
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from 2019. Fishing license purchases among that same group were up 11.4% from 2020 and 11.7% from 2019.
Buggia credits the increase in visitors coming from out of state to the large amount of state land that is available for hunting and the variety of species that are in the state. Some of the species that are available in Michigan include walleye, salmon, steelhead trout and Northern pike. Some of the popular animals include duck, deer, turkey, rabbits, squirrels and elks.
“The good thing about Michigan is that state land is distributed across the state, so no matter where you live, there is an opportunity,” Buggia said. “Traditionally, people tend to go up north, to the northern part of the Lower Peninsula or the Upper Peninsula to do a lot of hunting. There are opportunities outside Grand Rapids. The Allegan State Game Area, which is one of the bigger pieces of public land, is not only great for recreating but it has some good hunting and fishing opportunities.”
The increase in hunting and fishing license purchases has created a positive economic impact during a time when much of the country was shut down and is now trying to rebound economically.
Hunting and fishing have a combined $11.2 billion economic impact on Michigan and provide an estimated 171,000 jobs annually, according to a 2019 study released by the Michigan United Conservation Clubs in partnership with Michigan State University.
Buggia said hunters and anglers support the economy by buying the equipment they need and also purchasing gas to put in their boats and vehicles, paying for hotels to stay in and purchasing meals.
“It has a pretty big impact on the overall economy and supports jobs across the state,” he said. “Michigan has a few factories that produce things like bows and ammunition and things like that, but it is more than just the outdoor equipment. A lot of people may be traveling up north to go hunting and they stay in a hotel, they go out to eat a few times a week, so it is supporting those local economies at certain destinations where certain times of the year those towns are seeing a big increase in tourism dollars.”
While the hunting and fishing license purchases have increased, there are efforts to keep the animal populations in balance and protect Michigan waters from habitat degradation and invasive species, as well as safeguard the state’s forests to provide habitats for thousands of wildlife species and reduce the risk of wildfires and flooding.
Licenses purchased by hunters and anglers generated an estimated $65.5 million for the Michigan Game and Fish Protection Fund in 2020. The fund is the DNR’s largest revenue source and is critical to its conservation work. The sale of hunting and fishing equipment raised an additional $29.4 million to support wildlife and natural resource management.
“Hunting and fishing is really a management tool,” Buggia said. “That is what it is about. It is not just about going out there and harvesting an animal. It is about making sure that the populations are at sustainable levels. If we have way too many deer, it can spread diseases and there can be an increase in deer-andcar accidents and things like that. There is a lot of time and science that goes into determining what a sustainable population is and that is not only for deer and turkey, it also is for things like sturgeon and butterflies.
“So not only is hunting and fishing a tool to make sure that the population is staying at the right amount, because you can raise or lower the amount that is harvested so that can change from year-to-year, but the money from hunting and fishing licenses is the primary source of conservation funding not only in the state but across the country.”
Record pace of M&A expected to continue
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$1 million to more than $1 billion.
Responses to Dykema’s 17th annual Mergers & Acquisitions Outlook Survey indicated M&A is expected to be strong in the next 12 months, with most viewing the Biden administration’s legislative agenda as positively impacting activity.
Seventy-five percent of respondents expect the U.S. M&A market will strengthen in the next 12 months, while only 7% anticipate it will weaken. Respondents not only predict deal volumes will be up across the board, from small to midmarket to megadeals of $1 billion and more, but nine out of 10 also expect M&A activity among privately owned businesses to increase over the next year.
“For us, the optimism comes as no surprise,” said Tom Vaughn, co-leader of Dykema’s mergers and acquisitions practice. “The top three factors cited as fueling current M&A activity — availability of capital, financial markets and general economic conditions — support the notion that all the fundamentals needed for a bull market are there. All of this coincides with recent data showing this year’s M&A activity is on pace to be the biggest in history.”
Vaughn said the flood of new startup private equity firms in the market looking to make strong returns — including in Michigan’s middle market — contributes to the availability of capital for those looking to buy.
In addition to strong financial markets, he said the current high business valuations are drawing sellers to market who otherwise may have continued to sit on the sidelines.
When asked about leading concerns regarding M&A in the next year, respondents said the pandemic still ranks as a top challenge, with 49% citing it as a significant obstacle to M&A in the next 12 months. The fact that the survey was conducted before the omicron variant appeared and began spreading probably makes this an even bigger concern today, Vaughn said.
“This (concern about the pandemic) might stem from ongoing supply chain and labor shortage issues associated with the pandemic, as well as the general, but persistent, uncertainty it brings,” said Jeff Gifford, leader of Dykema’s corporate finance practice group. “That said, now, even after the surge in cases, dealmakers have learned how to manage COVID-19-related uncertainties, with respondents ranking COVID-19-related delays sixth in order of the most common obstacles they experienced in deal-making last year.”
Vaughn added the M&A world quickly adapted to doing due diligence and management meetings virtually, which allowed them to carry on advising and closing transactions at record rates in 2021.
In a departure from Dykema’s 2020 M&A Outlook Survey, most respondents believe the implementation of Biden’s policies — including his proposed infrastructure bill, immigration reform, renewable energy targets and increased deficit spending on economic stimulus — will have a positive impact on the U.S. M&A market in 2022.
Respondents do not believe issues such as heightened antitrust scrutiny and corporate tax increases, generally considered hostile to the M&A market, can slow down the U.S. M&A market in the next year, likely due to gridlock in Congress making those reforms unlikely to pass anytime soon, Vaughn said.
The survey yielded several additional findings: •Sixty-five percent of respondents said they were more likely to be involved in joint ventures — the biggest increase over 2020 (14%) out of the three deal types surveyed (acquisition, sale, joint venture) — though all categories saw reasonable gains. •Respondents embraced an increase in the Securities and Exchange Commission’s scrutiny of special purpose acquisition company (SPAC) initial public offerings (IPOs) in the near term (58%) and long term (67%) and expect the SPAC boom to continue.
•Most respondents (55%) have worked on a deal in which the target company or buyer was screened for environmental, social and governance (ESG) risk within the past 12 months, while three-quarters of respondents expect to work on a deal that includes screening for ESG risk over the next 12 months. •Technology and health care, both prominent economic players in 2020, dropped down to fourth and fifth places when asked what sectors were expected to be the most active in the next year, while energy soared from eighth to second place. For the fourth year in a row, the automotive industry topped the list.
Vaughn said Dykema, being Michigan-based with an office in Grand Rapids, segments the data from respondents based in the region to see if there are any appreciable differences in the M&A outlook for Michigan vs. the national outlook, but this time around, nothing stood out.
If anything, he said, Michigan is benefiting from the ongoing top position of the automotive industry when it comes to M&A activity, as well as the surge of deals in the energy sector — including solar, where tax credits are available for companies focused on renewable energy — and electric vehicles (EV), as the state’s major automakers race to compete in the EV space.
“That is going to transform the industry, and the large companies are going to need to do acquisitions of companies that are particularly focused in on the EV world,” Vaughn said.
For companies looking to do M&A in 2022, Vaughn said his advice is to start early.
“There is going to be a lot of overflow from the deals that did not get done (in 2021) into (2022). I already have a couple deals that I’ve pushed into (this) year, and as a result, I think 2022 is going to be very busy,” he said. “You don’t want to be in the position (of waiting to sell until) next fall. You want to do it sooner so that you can make sure that your deal gets enough attention.”
The best thing sellers and buyers alike can do, he said, is to be well prepared — financially, organizationally and legally — to start the deal process before it begins.
“You want to have all of your ducks in a row so that when you hit the street and you hit the investment banking process, things can move very quickly, and you can garner the highest valuations,” he said.
Dykema’s full 2022 M&A Outlook Survey Report is available at bit.ly/dykemaMAoutlook.
Medical labs navigate COVID rules
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work with,” Allen said. “We’re updating them weekly on ‘this is your positivity rate, and this is what we’ve seen over the course of the past week,’ and that really helps to kind of identify quicker what’s going on in terms of spread through our companies.”
The company also provides access to a dedicated OSHA representative to help employers build out a successful testing program, prepare staff for any testing requirements and ensure compliance with its and any other ETS orders. According to Allen, the lab typically suggests that companies select a designated HR or other company representative to work closely with OSHA and the regulatory bodies within the community.
“Ideally, businesses need to figure out if they fall into the mandated testing category, and if not, work internally to figure out what the benefit to a program would be, along with what the cost to not implement a program could potentially mean for their staff and business,” Allen said. “If it makes sense for them to initiate a program, even if not mandated, we are one of many local companies standing by ready to help. Keeping our community safe, healthy and productive is our goal.”
As employers waited to see whether they mandate would hold, they found themselves in a delicate balancing act of implementing practices to keep their employees and companies safe from virus outbreaks, while also trying their best to not deter any current or potential employees from working after millions left the workforce over the last couple of years as a result of the pandemic.
The U.S. Supreme Court was at press time scheduled to hear oral arguments Jan. 7 on emergency applications by various parties to re-stay the OSHA mandate, determining whether the government should be able to enforce the federal vaccine mandates while the underlying litigation challenging them still is ongoing. Allen said medical laboratories are standing by to help navigate these new circumstances, regardless of what SCOTUS decides.
“And, you know, everyone’s just looking to do the right thing for the community, so we’re here to help,” Allen said. “If by chance we ran into a situation where we couldn’t (help), we have partner labs that we would identify at that time to help people. So, I think (the) biggest thing is just letting people know that we’re a big community, we all work together, and I think ideally we’re all just trying to do the right thing to keep our community safe.”
