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 Bourtin, Catherine M. Clarkin, Jared M. Fishman, Julia M. Jordan, Marc Treviño and Benjamin H. Weiner
RECENT CLIENT GUIDANCE
ISS Releases FAQ on U.S. Compensation Policies and the COVID-19 PandemicOctober 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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| M&A: Dealing with Uncertainty October 19, 2020 – M&A partner Melissa Sawyer, co-head of the Firm’s Corporate Governance & Activism practice, participated in a discussion at the Milken Institute Global Conference on “M&A: Dealing with Uncertainty.” The panel examined whether M&A activity will remain subdued through the rest of the COVID-19 pandemic; whether previously prohibitive deals may become viable as industries and business models adapt to the new climate; and what factors might incite dealmakers to seize opportunities in a disrupted economy. Watch Our Webinar |
| Lessons From the 2020 Proxy Season: Human Capital Proposals October 13, 2020 – Marc Treviño, co-head of the Firm’s corporate governance practice and managing partner of its executive compensation group, discusses how the COVID-19 pandemic and other recent events may increase the prevalence of human capital proposals submitted by shareholders following the 2020 proxy season. Marc explores why more companies are likely to adopt or expand public disclosure on human capital management next year in response to growing pressure from investors and regulators. He also outlines changes to expect for specific categories of human capital proposals, including those related to diversity, arbitration and social capital. Watch Our Webinar |
| Lessons From the 2020 Proxy Season: Virtual Shareholder Meetings October 5, 2020 – Melissa Sawyer, M&A partner and co-head of the Firm’s Corporate Governance & Activism Practice, discusses the impact of the COVID-19 pandemic on shareholder meetings for U.S. issuers during the 2020 proxy season, when meetings were largely virtual for the first time. Melissa provides an overview of how companies and stakeholders have reacted to the shift. She also looks ahead to how the evolving expectations of investors might affect the format of meetings in 2021. Watch Our Webinar |
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Updated: OSHA Issues Revised Enforcement Guidance on Reporting COVID-19 CasesOctober 2, 2020 Update. On September 30, 2020, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) updated its COVID-19 Frequently Asked Questions webpage to provide additional guidance on when employers should report work-related COVID-19 fatalities or in-patient hospitalizations to OSHA. This additional guidance has been incorporated into this updated post.
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September 23, 2020 Update: California Mandates COVID-19 Supplemental Paid Sick Leave Through the End of 2020 For Employers with 500 or More Employees In the United StatesSeptember 23, 2020 Update. The California Labor Commissioner’s Office published responses to frequently asked questions regarding the COVID-19 supplemental paid sick leave available to California workers at companies with 500 or more employees nationwide. The below post has been updated to reflect this guidance.
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California Expands COVID-19 Worker ProtectionsSeptember 23, 2020 – On September 17, 2020, California Governor Gavin Newsom signed two new bills as part of his worker protection package. The first, SB 1159, expands the presumption of workers’ compensation liability for COVID-19 claims. The second, AB 685, ensures timely notification to employees and local and state public health officials of COVID-19 cases at workplaces. These bills are covered in more detail below.
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| Marc Treviño, Melissa Sawyer and June Hu Present Webinar on Lessons From the 2020 Proxy Season September 23, 2020 – S&C Corporate Governance co-heads Marc Treviño and Melissa Sawyer and associate June Hu hosted a webinar to further explain the lessons from the 2020 proxy season and what to expect going forward. They examined topics including Rule 14a-8 shareholder proposals, say-on-pay votes and equity compensation, and what to expect in 2021. Watch Our Webinar |
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Another Court Dismisses PPP Agent Fee ActionSeptember 21, 2020 – In the second decision on a motion to dismiss in cases brought by “agents” seeking fees from lenders for allegedly helping small business borrowers obtain loans under the Paycheck Protection Program, Judge Rakoff in the Southern District of New York granted defendants’ motions to dismiss in six consolidated actions brought by putative agents against JPMorgan Chase Bank, N.A., Citibank, N.A., Signature Bank, and MUFG Union Bank, N.A.
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Update: U.S. Department of Labor Issues New COVID-19 Guidance on FLSA, FMLA, and FFCRA Leave
Updated September 17, 2020 – On September 16, 2020, the U.S. Department of Labor (“DOL”) published revisions and clarifications to its Temporary Rule (“Rule”) implementing the provisions of the Families First Coronavirus Response Act (“FFCRA”). Additionally, on September 11, 2020, the DOL updated its FFCRA Questions and Answers document to reflect these changes. These revisions are in response to the United States District Court for the Southern District of New York’s August ruling which vacated certain provisions of the DOL’s initial temporary rule.
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Update: U.S. Department of Labor’s Wage and Hour Division Guidance on Leave Provisions of the Families First Coronavirus Response Act
Updated September 17, 2020 – On September 16, 2020, the U.S. Department of Labor (“DOL”) published revisions and clarifications to its Temporary Rule (“Rule”) implementing the provisions of the Families First Coronavirus Response Act (“FFCRA”). Additionally, on September 11, 2020, the DOL updated its FFCRA Questions and Answers document to reflect these changes. These revisions are in response to the United States District Court for the Southern District of New York’s August ruling which vacated certain provisions of the DOL’s initial temporary rule.
Read Our Updates: Part 1, Part 2, Part 3 and Part 4
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U.S. Department of Labor Issues Regulations Implementing the Families First Coronavirus Response Act’s Leave Provisions
Updated September 17, 2020 – On September 16, 2020, the U.S. Department of Labor (“DOL”) published revisions and clarifications to its Temporary Rule (“Rule”) implementing the provisions of the Families First Coronavirus Response Act (“FFCRA”). Additionally, on September 11, 2020, the DOL updated its FFCRA Questions and Answers document to reflect these changes. These revisions are in response to the United States District Court for the Southern District of New York’s August ruling which vacated certain provisions of the DOL’s initial temporary rule.
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Frank Aquila, Melissa Sawyer and June Hu Author Bloomberg Law Article on ESG Issues in Post-Pandemic M&ASeptember 16, 2020 – S&C partners Frank Aquila and Melissa Sawyer and associate June Hu discuss how businesses should weigh environmental, social and governance (“ESG”) factors when considering acquisitions in the post-pandemic world in an article published in Bloomberg Law.
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San Francisco Enacts Ordinance Protecting Workers and Applicants from COVID-19-Related Adverse Actions and Discrimination.September 16, 2020 – On September 11, 2020, San Francisco enacted the COVID-Related Employment Protections Ordinance (the “Ordinance”) to temporarily protect workers from adverse action and applicants from discrimination if they test positive for COVID-19, are isolating or quarantining, or have previously isolated or quarantined, due to COVID-19 symptoms or exposure. The Ordinance will remain in effect for 60 days, until November 10, 2020, unless it is reenacted by the San Francisco Board of Supervisors.
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California Mandates COVID-19 Supplemental Paid Sick Leave Through the End of 2020 For Employers with 500 or More Employees In the United States
September 15, 2020 – On September 9, 2020, Governor Newsom signed into law Assembly Bill No. 1867, which, among other things, provides COVID-19 supplemental paid sick leave to certain employees that are not covered by the Families First Coronavirus Response Act (the “FFCRA”). The law goes into effect immediately and requires covered employers to provide COVID-19 supplemental paid sick leave no later than September 19, 2020. The requirement will remain in effect until the latter of December 31, 2020, or the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the FFCRA.
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EEOC Releases Updated Guidance to Employers Regarding ADA-Compliant Practices During the COVID-19 CrisisSeptember 10, 2020 – On September 8, 2020, the Equal Employment Opportunity Commission (“EEOC”) released additional updates to its technical assistance bulletin entitled, “What You Should Know About COVID 19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The updated bulletin explains that COVID-19 testing administered by employers in accordance with current CDC guidance will meet the ADA’s “business necessity” standard and clarifies that employers may inform the workforce that employees with disabilities may request accommodations in advance of return-to-work.
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Updated: U.S. Department of Treasury and Small Business Administration Release Loan Forgiveness Applications and Instructions for Paycheck Protection ProgramAugust 27, 2020 Update. On August 24, 2020, the Small Business Administration (“SBA”), in consultation with the U.S. Department of the Treasury (“Treasury”), published the Interim Final Rule on Treatment of Owners and Forgiveness of Certain Nonpayroll Costs, which addresses: (1) the ownership percentage that triggers the applicability of owner compensation rules for forgiveness purposes, and (2) limitations on the eligibility of certain nonpayroll costs for forgiveness. Specifically, the rule discusses the eligibility for forgiveness of nonpayroll costs attributable to a tenant (or sub-tenant), household expenses of home-based businesses, and rent and mortgage interest payments made to related parties. This interim final rule supplements the interim final rules previously posted by the SBA and discussed below. This guidance has been incorporated into this updated post.
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August 2020 Securities Enforcement and Litigation Update
August 27, 2020 – 2019 and the first half of 2020 saw extensive activity in both SEC enforcement and private securities litigation. In terms of both the number of standalone enforcement actions brought and the amount of money recovered, 2019 was a banner year for the SEC, although the Supreme Court’s recent decision in Liu v. SEC established important limitations on the SEC’s disgorgement authority going forward. Notwithstanding the COVID-19 pandemic, the SEC has continued its busy pace of enforcement activity in the first half of 2020, with a particular focus on protecting “Main Street” investors.
White House Issues Memorandum Directing FEMA to Create a COVID-19 Lost Wages Assistance Program
August 19, 2020 – On August 12, 2020, the U.S. Department of Labor released Unemployment Insurance Program Letter No. 27-20, as well as a Questions and Answers document, which together provide states with technical assistance for administering the Lost Wages Assistance program discussed in this post. Additionally, the Federal Emergency Management Agency (“FEMA”) released a webpage on the Lost Wages Assistance program, a Fact Sheet regarding payments under the Lost Wages Assistance program, and a Questions and Answers document. Among other things, this new guidance (i) provides further clarification regarding eligible claimants, the covered period, and documentation requirements; and (ii) creates an option for individuals to receive $300 weekly payments without any additional state contribution. As of August 15, 2020, Arizona, Iowa, Louisiana, and New Mexico have agreed to participate in the Lost Wages Assistance program. This guidance has been incorporated into this post.
Court Dismisses PPP Agent Fee ActionAugust 17, 2020 – Today, in the first decision on a motion to dismiss in a case brought by an “agent” seeking fees from lenders for allegedly helping small business borrowers obtain loans under the Paycheck Protection Program, Judge Wetherell in the Northern District of Florida granted defendants’ motion to dismiss all claims. As to the “central issue of first impression . . . whether Plaintiff and others like it are entitled to any portion of the fees paid by the federal government to lenders like Defendants who were tasked with handing out hundreds of billions of dollars of ‘loans’ under the [PPP],” Judge Wetherell held that “[t]he short answer is ‘no.’”
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Coronavirus Aid, Relief, and Economic Security Act—Key Employer TakeawaysUpdated August 12, 2020 – On August 8, 2020, President Trump signed a memorandum titled “Authorizing the Other Needs Assistance Program for Major Disaster Declarations Related to Coronavirus Disease 2019” (“White House Memo”). The White House Memo directs the Federal Emergency Management Agency (“FEMA”) to provide additional unemployment benefits of $400 per week to individuals currently receiving unemployment benefits due to disruptions caused by COVID-19. These additional unemployment benefits would be 75% funded by the federal government, and the White House Memo additionally “call[s] upon the States” to use funds appropriated by the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) to provide the remaining funds.
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| S&C Critical Insights – Recent M&A and Litigation Developments in Delaware August 11, 2020 – In this episode of S&C’s Critical Insights podcast series, Litigation partners John Hardiman and Brian Frawley join M&A partner Mat
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