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
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New York State Issues Phase Two Reopening Guidance for Businesses
June 3, 2020 – New York State has issued industry-specific guidance for businesses eligible to reopen during Phase Two, including offices. This new guidance contains certain “minimum requirements” that businesses must meet before reopening to prevent the spread of COVID-19.
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California’s COVID-19 Industry Guidance for Reopening Office Workspaces
June 2, 2020 – Under California’s reopening plan, California counties can reopen as they meet certain metrics. Parts of California are currently in Stage 2 of the previously issued Resilience Roadmap. During Stage 2, certain lower-risk workplaces can reopen with adaptations, including: retail, manufacturing, offices (when telework is not possible), outdoor museums and limited personal services.
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Updated: California Governor Newsom Announces Certain Businesses May Begin Reopening on May 8, 2020
June 2, 2020 Update – California has issued industry guidance for office workspaces. More detailed information about that guidance can be found in our blog post, California’s COVID-19 Industry Guidance for Reopening Office Workspaces.
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CDC Issues Interim Guidelines for COVID-19 Antibody Testing
June 1, 2020 – On May 27, 2020, the U.S. Centers for Disease Control and Prevention (the “CDC”) issued interim guidelines for COVID-19 antibody testing. While this guidance is primarily intended for healthcare providers, clinical laboratory professionals, and public health officials, the interim guidelines also include information relevant to employers as they consider whether and to what extent to use antibody testing in their reopening plans.
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COVID-19 Insurance Developments: Business Interruption, Workers’ Compensation, Auto
May 29, 2020 – The novel coronavirus (“COVID-19”) pandemic and the business closures, unemployment and economic disruptions caused by the pandemic continue to generate significant insurance-related legislative, regulatory and litigation activity in the United States. This Memorandum summarizes recent key COVID-19-related developments with respect to three property and casualty insurance coverages particularly affected by the crisis.
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CDC Issues Guidance for Employers in Office Buildings in Response to COVID-19 Pandemic
May 29, 2020 – On May 27, 2020, the U.S. Centers for Disease Control and Prevention (the “CDC”) issued guidance on the steps “[o]ffice building employers, building owners and managers, and building operations specialists” can take to “create a safe and healthy workplace and protect workers and clients.”
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Agencies Issue Guidance on Small-Dollar Loans
May 28, 2020 – On May 20, 2020, the Federal Reserve, FDIC, NCUA and OCC issued Interagency Lending Principles for Offering Responsible Small-Dollar Loans. The Lending Principles are intended to encourage supervised banks, savings associations and credit unions to offer responsible small-dollar loans to customers for both consumer and small business purposes.
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U.S. Department of Treasury and Small Business Administration Release Loan Forgiveness Application Form and Instructions for Paycheck Protection Program
May 28, 2020 Update – On May 22, 2020, the Small Business Administration, in consultation with the U.S. Department of Treasury, released the Interim Final Rule on Loan Forgiveness and the Interim Final Rule on SBA Loan Review Procedures and Related Borrower and Lender Responsibilities, which provide borrowers with further guidance regarding loan forgiveness and provide lenders with guidance on their responsibilities.
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NYSE Provides Temporary COVID-19 Exception From Shareholder Approval Requirements Under 20% Rule
May 21, 2020 – In light of the impact of the COVID-19 pandemic, the New York Stock Exchange LLC filed notice of a proposed rule change on May 14 with the Securities and Exchange Commission, which became effective immediately. Specifically, Section 312.03T (the “Temporary Rule”) of the NYSE Listed Company Manual (the “Manual”) provides a limited temporary exception from the application of the shareholder approval requirements in Section 312.03 of the Manual—also known as the “20% Rule”—and a limited attendant exception from the requirements of Section 303A.08 of the Manual (Shareholder Approval of Equity Compensation Plans). The Temporary Rule is substantially similar to Nasdaq Listing Rule 5636T, which was filed by The Nasdaq Stock Market LLC on May 4, 2020.
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| S&C Critical Insights – S&C Mergers & Acquisitions Leaders Discuss COVID-19 Impact on Dealmaking May 12, 2020 – Sullivan & Cromwell partners Frank Aquila, Scott Miller and Rita-Anne O’Neill discuss the impact of the COVID-19 pandemic on dealmaking, both in the short and long term. Watch our Video |
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EEOC Delays Collection of Demographic Data in Light of COVID-19
May 12, 2020 – On May 8, 2020, the EEOC announced, in a notice that can be found here, that in light of the COVID-19 public health emergency, it is delaying its anticipated opening of the 2019 EEO-1 Component 1 and the 2020 EEO-3 and EEO-5 Data Collections to 2021.
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S&C Critical Insights – OFAC Guidance in Response to COVID-19
May 6, 2020 – In this episode of S&C’s Critical Insights podcast series, Eric Kadel, co-managing partner of S&C’s Economic Sanctions and Financial Crime practice, and Jamie Earl, special counsel in the practice, discuss OFAC’s recent guidance regarding compliance during the COVID-19 pandemic. First, they consider OFAC’s most recent guidance, issued April 20, 2020. Next, they cover OFAC’s April 16, 2020 guidance regarding provisions related to humanitarian assistance and trade under US economic sanctions programs.
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California Expands Workers’ Compensation in Response to COVID-19 Pandemic
May 6, 2020 – On May 6, 2020, California Governor Gavin Newsom signed an Executive Order expanding workers’ compensation for employees who report to the workplace in-person at the instruction of their employer after March 19, 2020, including front-line workers such as nurses, first responders, janitors and warehouse workers.
New York Governor Cuomo Suggests Business Reopening Could Occur As Early As May 15, 2020
May 4, 2020 – On May 4, 2020, New York Governor Andrew Cuomo provided additional detail on previously issued guidelines for the phased, regional reopening of New York businesses. Gov. Cuomo said that “May 15 is a possible reopening” start date, which is when the New York State on PAUSE executive order is currently set to expire.
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Los Angeles Adopts Right of Recall and Worker Retention Ordinances in Response to COVID-19 Pandemic
May 1, 2020 – On April 29, 2020, the Los Angeles City Council adopted a Right of Recall Ordinance and a Worker Retention Ordinance, both aimed at protecting hospitality, janitorial, and tourism workers “facing significant job and economic insecurity” due to the COVID-19 pandemic. That same day, Mayor Garcetti announced that he had signed the two Ordinances into law.
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Reopening Considerations: DOL’s Request for Reopening Insights from Public and EPA and CDC’s Joint Guidance for Cleaning and Disinfecting Worksites
May 1, 2020 – As states ease or lift their stay-at-home orders and employers consider returning to in-person operations, two recent federal actions may be of interest.
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Proposed Pandemic Anti-Monopoly Act
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CFIUS Filing Fees: Filing Fees Effective for Transactions Entered Into On or After February 13, 2020
May 1, 2020 – On April 28, 2020, the U.S. Department of the Treasury (“Treasury”) issued an interim final rule (the “Rule”) establishing filing fees for parties filing a written notice with the Committee on Foreign Investment in the United States on or after May 1, 2020 with respect to transactions entered into on or after February 13, 2020.
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Sustainable Finance Update
April 30, 2020 – Sustainable finance is increasingly mainstream. Global sustainable debt issuance reached $465 billion in 2019, up 78% from 2018. While the COVID-19 pandemic has disrupted financial markets, the pandemic has also underlined social and sustainability challenges globally and presented new opportunities for financial markets to help solve these challenges.
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| S&C Critical Insights – S&C Capital Markets Co-Heads Discuss “PIPE” Transactions April 29, 2020 – Sullivan & Cromwell Capital Markets Group co-heads Robert Downes, Cathy Clarkin and Sarah Payne discuss why they expect to see more “PIPE” (private investments in public equity) transactions as the pandemic restrictions continue. Watch our Video |
S&C Critical Insights – Return-To-Work Considerations For Employers Following COVID-19April 29, 2020 – In this episode of S&C’s Critical Insights podcast series, Annie Ostrager, co-head of S&C’s Labor and Employment Practice, and litigator Katharine Rodgers, discuss returning to the workplace following the COVID-19 pandemic. On April 16, the White House issued a set of guidelines for reopening the U.S. economy with a three-phase, state-by-state approach. Annie and Katharine explore specific items employers may want to consider as they determine when and how to return their employees to the workplace.
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S&C Critical Insights – The Impact of COVID-19 on the Aviation Industry
April 28, 2020 – In this episode of S&C’s Critical Insights podcast series, Amanda Flug Davidoff, Deputy Managing Partner of S&C’s Litigation Group, Annie Ostrager, co-head of the Labor and Employment Law Group, and George Sampas, leader of the Firm’s aviation and North American energy and natural resources practices, discuss issues the aviation industry is facing due to the COVID-19 pandemic. First, they address the CARES Act and the CESA loan program as they relate to the aviation industry. They also explore certain legal considerations airlines should be mindful of during the ongoing crisis.
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SEC Adopts Securities Offering and Disclosure Reforms for Business Development Companies and Registered Closed-End Funds
April 27, 2020 – SEC adopts amendments to the registration, offering and communications processes and other aspects of the disclosure and regulatory rramework for business development companies and registered closed-end funds to provide parity with operating companies.
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S&C Critical Insights – The Impacts of COVID-19 on U.K. M&A
April 27, 2020 – In this episode of S&C’s Critical Insights podcast series, London corporate partners Vanessa Blackmore, Jeremy Kutner and Ben Perry discuss the impact of the COVID-19 pandemic on M&A in the U.K. Vanessa, Jeremy and Ben explore some of the issues that are arising as a result of general economic and market conditions, the impact of COVID-19 on businesses that are being acquired and the responses by governments to COVID-19, and consider whether, and if so how, these may change market practice.
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Paycheck Protection Program: Stimulus Legislation To Replenish the Paycheck Protection Program by Providing an Additional $310 Billion
April 23, 2020 – Earlier today, the U.S. House of Representatives passed the “Paycheck Protection Program and Health Care Enhancement Act” (the “Act”). The Act amends the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) to increase by $310 billion the amount authorized for the Small Business Administration (the “SBA”) to commit for loans under the Paycheck Protection Program (the “PPP”). This increase brings the total authorized level to $659 billion.
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COVID-19 Response—Return-to-Work Considerations for Employers
April 23, 2020 – Federal and State officials are planning for reopening the U.S. economy and employers nationwide are considering how to prepare their workplace and workforce for a return to work. This memorandum outlines actions that employers may want to consider in planning the return to in-person workplace operations.
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UPDATE: U.S. Department of Labor's Wage and Hour Division April 3, 2020 Guidance on Leave Provisions of the Families First Coronavirus Response Act: Part IIIApril 22, 2020 – On or around April 20, 2020, the Department of Labor's Wage and Hour Division (the “DOL”) provided additional guidance in its Questions and Answers document. Among other things, the new guidance provides more information regarding how an employer should calculate an employee's regular rate of pay and the hours of paid leave to which the employee is entitled under the FFCRA. Additionally, on April 20, 2020, the DOL announced the end of the temporary period of non-enforcement of the FFCRA's leave provisions.