As the COVID-19 global pandemic has disrupted life, the business world faces a stark new reality. Executives have been forced to make difficult decisions about layoffs and furloughs, investor disclosures, and cybersecurity threats as employees work from home. At the same time, these executives must understand new government programs in the United States and abroad that have been enacted to support businesses, but that raise a host of questions. And many must assess how they will deal with future M&A activity, including unsolicited offers and activist investors drawn to depressed stock prices.

To help our clients better understand this new business and legal landscape, our lawyers have prepared an ongoing series of S&C Memos, Podcasts and Webinars that outline and explain important issues in the fields of Corporate, M&A, Financial Services and Labor and Employment. While the law and regulations continue to evolve, we will keep you updated on the latest developments.

Partner Contacts: Nicolas BourtinCatherine M. ClarkinJared M. FishmanJulia M. JordanMarc Treviño and Benjamin H. Weiner



 

RECENT CLIENT GUIDANCE



S&C Webinar – European M&A: Lessons from a Time of Turmoil

July 26, 2021 – S&C partners, Garth Bray, Vanessa Blackmore, Richard Pollack, Konstantin Technau and Olivier de Vilmorin spoke at a webinar hosted by S&C titled “European M&A Practice in a Changing Environment – Lessons Learned from the COVID-19 Outbreak”.

Watch here


COVID-19: New York Office Reopening Guidance

June 15, 2021 Update – The New York office reopening guidance became optional, because 70 percent of New Yorkers aged 18 or older have received the first dose of their COVID-19 vaccination series.




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The EEOC Issues Guidance Clarifying Mandatory COVID-19 Vaccinations Are Permitted Under Federal Law, Subject to “Reasonable Accommodations” and “Direct Threat” Assessments, and Allowing Employers to Provide Employees with Incentives for Vaccinations
 
June 4, 2021 – On May 28, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its guidance on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (the “guidance”). The guidance provides that federal equal employment opportunity laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII of the Civil Rights Act (“Title VII”) and the Americans with Disabilities Act (“ADA”) and other equal employment opportunity considerations. These principles apply regardless of where an employee gets the vaccine (i.e., in the community or from the employer). The guidance also states that employers may offer incentives to employees who voluntarily demonstrate that they received the COVID-19 vaccination.

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New York Imposes Employer Obligations to Provide Leave for COVID-19 Vaccinations

June 2, 2021 Update 
– The New York State Department of Labor recently issued guidance on the use of paid sick leave for COVID-19 vaccine recovery time. According to this guidance, employees may use accrued sick leave available to them under the New York State Sick Leave law (“NYSSL”) for the recovery of any side effects of the COVID-19 vaccination and employers are obligated to permit employees to do so. The NYSSL is in addition to New York State COVID-19 emergency paid sick time and COVID-19 vaccination leave protections.


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OSOSHA Issues Revised Enforcement Guidance on Reporting COVID-19 Cases

May 20, 2021 Update – On or around May 19, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) updated its COVID-19 Frequently Asked Questions webpage to provide guidance on when employers are required to record an employee’s adverse reaction to a COVID-19 vaccine. This additional guidance has been incorporated into this updated post.

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U.S. Department of Labor Launches the Essential Workers, Essential Protections Initiative During the COVID-19 Pandemic

May 6, 2021 
– On April 26, 2021, the U.S. Department of Labor’s Wage and Hour Division (“DOL”) announced the Essential Workers, Essential Protections initiative (the “Initiative”) to provide workers who have been deemed “essential” during the COVID-19 pandemic additional information about applicable wage and hour laws that protect them and resources for contacting the DOL. Specifically, the Initiative is designed to educate workers on the Fair Labor Standards Act and the Family and Medical Leave Act.

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S&C Critical Insights – Private Securities Litigation: Trends and Emerging Issues

April 16, 2021 – In this episode of S&C’s Critical Insights podcast, Steve Peikin, head of the Firm’s Securities & Commodities Investigations & Enforcement Practice and former co-director of the SEC’s Enforcement Division, and Jeffrey Scott and Julia Malkina, co-leads of the Firm’s Securities Litigation Practice, discuss recent trends in private securities litigation. They explore how the COVID-19 pandemic, an influx of SPAC-driven IPOs, state court proceedings post-Cyan and ESG disclosures are driving emerging issues in this field.

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U.S. Department of Labor Issues New COVID-19 Guidance on FLSA, FMLA, and FFCRA Leave

May 6, 2021 Update – 
On April 26, 2021, the U.S. Department of Labor (“DOL”) announced the Essential Workers, Essential Protections initiative (the “Initiative”) to provide workers who have been deemed “essential” during the COVID-19 pandemic additional information about applicable wage and hour laws that protect them and resources for contacting the DOL. Specifically, the Initiative is designed to educate workers on the Fair Labor Standards Act (“FLSA”) and the Family and Medical Leave Act (“FMLA”).

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The American Rescue Plan Act—Key Employer Takeaways

March 22, 2021 Update – 
On March 11, 2021, President Biden signed the American Rescue Plan Act, which extends COVID-19-related unemployment benefits and payroll tax credits for voluntary provided leave under the FFCRA, and creates new COBRA subsidy and notice requirements for employers. This memorandum synthesizes the important aspects of the legislation.

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French Government Renews Measures Regarding Shareholder and Board Meetings in the Context of the COVID-19 Pandemic

March 15, 2021 Update – 
The French Government has renewed and amended the temporary measures initially adopted in March 2020 to alleviate certain legal and administrative constraints applicable to French listed companies that cannot be complied with during the COVID-19 pandemic.

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U.S. Department of Labor Issues Guidance on Unemployment Provisions

March 1, 2021 Update – 
On February 25, 2021, the U.S. Department of Labor (“DOL”) issued a change to Unemployment Insurance Program Letter (“UIPL”) No. 16-20 that, among other things, expands the criteria under which workers may be eligible to receive Pandemic Unemployment Assistance. 


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OSHA Issues Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace

February 3, 2021 Update 
– On January 29, 2021, the Occupational Safety and Health Administration (“OSHA”) issued guidance to employers and workers in most workplace settings (excluding healthcare) to help them (1) identify risks of being exposed to and/or contracting COVID-19 at work, and (2) determine appropriate control measures to implement (the “Guidance”). The Guidance, titled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” has been issued for “planning purposes” and “is not a standard or regulation, and it creates no new legal obligations.” The Guidance contains recommendations and descriptions of existing mandatory safety and health standards.  The recommendations are advisory in nature, and are intended to assist employers in providing and abating hazards (potentially including workers that may have COVID-19) likely to cause death or serious physical harm as part of their obligation to provide a safe and healthy workplace.


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OSHA Issues General Guidance on Returning to Work

February 3, 2021 Update 
– On February 1, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) published advisory Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. Our blog post on this new guidance is available here.




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New York Imposes Employer Obligations to Provide Leave Related to Quarantines During COVID-19 Pandemic

February 2, 2021 Update  On January 20, 2021, the New York State Department of Labor issued supplemental guidance on the application of New York’s COVID-19 leave law (the “Act”). This guidance addresses situations in which employees may be eligible for additional sick leave under the Act, and has been incorporated into this updated post. 



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COVID-19 “Phase IV” Stimulus

January 5, 2021 – On December 27, 2020, President Trump signed into law the 2021 Consolidated Appropriations Act (the “Act”), which provides approximately $900 billion in coronavirus relief. This memorandum summarizes key financial services-related provisions of the Act, including (1) the extensive revisions made to the Small Business Administration’s Paycheck Protection Program (the “PPP”), (2) the authorization of emergency community development programs, (3) the extension of certain temporary suspensions and modifications of regulatory provisions applicable to banking institutions, and (4) the termination of certain lending facilities and lending authority created by the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). The Act represents the first comprehensive legislative response to the pandemic since the CARES Act in the spring, and the first major legislative update to the PPP since the Paycheck Protection Program Flexibility Act signed into law on June 5, 2020.

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COVID-19 Phase IV Stimulus Package—Key Employer Takeaways

December 31, 2020 – The Consolidated Appropriations Act, 2021 (“CAA”), signed into law on December 27, 2020, contains several provisions that may be of interest to employers. Among other things, the CAA extends and modifies the following employment-related provisions of the Coronavirus Aid, Relief, and Economic Security Act: (a) several key unemployment compensation programs; (b) the refundable Employee Retention Tax Credit; and (c) the period for repayment of deferred payroll taxes through December 31, 2021. 



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COVID-19 Vaccine Policies—What Employers Should Know

December 18, 2020 – On December 16, 2020, the Equal Employment Opportunity Commission updated its guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws, to include answers to questions that specifically address COVID-19 employee vaccine policies.  In short, the guidance states that employers may implement mandatory COVID-19 vaccine policies for employees as a condition to returning to, or remaining in, the workplace subject to certain exceptions.  In this memorandum, we discuss the EEOC’s new COVID-19 vaccination guidance as well as certain other legal considerations for employers as they develop their workplace policies in anticipation of widespread distributions of COVID-19 vaccines in 2021. 

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California’s OSHA Adopts Temporary, Emergency COVID-19 Regulations

Updated December 17, 2020 – On December 14, 2020, Governor Newsom issued an executive order that suspends the employee exclusion period under the Cal/OSHA emergency COVID-19 regulations if they exceed guidelines from the California Department of Public Health or local health officers. The updated memorandum summarizes the important aspects of the executive order. 


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S&C Critical Insights – Annual Overview of Activism Trends

December 8, 2020 – In this episode of S&C’s Critical Insights podcast series, Melissa Sawyer, co-head of S&C’s Corporate Governance & Activism Practice, and associate Lauren Boehmke provide an overview of U.S. activism trends they expect to persist into 2021. They cover the impact of the COVID-19 pandemic on activism campaigns in the spring of 2020 and look forward to how companies might get back to “business as usual” in the new year. They also discuss the convergence of strategy between activist investors and private equity funds, who are increasingly willing to borrow from each other’s playbooks. Finally, they explore how activists might look to capitalize on the ESP trend that has dominated corporate governance discourse among institutional investors. 

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Delaware Court Issues Important COVID-Related M&A Opinion

December 4, 2020 – In its first decision dealing substantively with the impact of COVID-19 on busted deal litigation, the Delaware Court of Chancery held that a buyer was within its rights to terminate an agreement to purchase a business owning 15 luxury hotels for $5.8 billion. In the 242 page Opinion in AB Stable VIII LLC v. Maps Hotels and Resorts One LLC et al., Vice Chancellor J. Travis Laster held that although the effects of COVID-19 did not qualify as a Material Adverse Effect (“MAE”), the buyer was nonetheless entitled to cancel the transaction because the seller breached its interim operating obligations. 

Being the first word from the Court of Chancery on these M&A COVID-related issues, this decision provides some useful guidance on the interpretation of MAE and ordinary course covenants that are ubiquitous in transaction agreements.

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Frank Aquila Talks to Reuters About Dealmaking in the Pandemic

November 24, 2020 – Frank Aquila, global head of Sullivan & Cromwell's M&A practice, spoke to Reuters for a Q&A about the effects of the COVID-19 pandemic on M&A, how it's different from the global financial crisis, and whether virtual dealmaking is here to stay.


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 California Takes Action to Curb COVID-19 Transmission 

November 19, 2020 – On On November 16, 2020, amidst an increase in COVID-19 cases in California and nationwide, California Governor Gavin Newsom announced new immediate actions to curb COVID-19 transmission, including pulling an “emergency brake” in California’s Blueprint for a Safer Economy Framework (the “Blueprint Framework”) and strengthening the state’s face covering guidance. These actions will remain in effect “until the State Public Health Officer determines it is appropriate to make modifications based on public health conditions and data.”

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ISS Releases FAQ on U.S. Compensation Policies and the COVID-19 Pandemic

October 21, 2020 – On October 15, 2020, Institutional Shareholder Services (ISS) released general, preliminary guidance as to how ISS U.S. Benchmark Research may approach pay decisions related to the COVID-19 pandemic in the context of ISS’ pay-for-performance qualitative evaluation. Consistent with existing ISS policy, an elevated concern in ISS’ quantitative screen will result in this more in-depth qualitative review. The guidance was shaped by feedback from discussions with investors at roundtables and ISS’ annual policy survey. ISS indicated that this FAQ provides preliminary guidance ahead of ISS’ regular annual FAQ update in December.


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