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

White House Issues Memorandum Directing FEMA to Create a COVID-19 Lost Wage Assistance Program

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. President Trump signed the White House Memo to extend economic relief after lawmakers were unable to reach agreement on a new stimulus package. It remains to be seen how states will react to the White House Memo, and it is possible that it will face future legal challenges. Certain states have reported that they cannot afford the 25% match. 

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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 Matt Goodman to provide an overview and analysis of recent Delaware corporate law developments. 

Listen to our Podcast

 

Updated: U.S. Department of Treasury and Small Business Administration Release Loan Forgiveness Applications and Instructions for Paycheck Protection Program

Updated August 7, 2020 –
On August 4, 2020, the Small Business Administration (“SBA”), in consultation with the U.S. Department of the Treasury (“Treasury”), published responses to questions frequently asked by Borrowers (as defined below) and lenders (the “August 4 FAQs”) concerning forgiveness of loans made under the Paycheck Protection Program (“PPP”) created by the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) and amended by the Paycheck Protection Program Flexibility Act (the “Flexibility Act”). The below post has been updated to reflect this guidance. The last date on which a PPP Loan (as defined below) application may be approved is August 8, 2020.

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

Updated August 7, 2020 – On August 3, 2020, the Southern District of New York issued a decision in New York v. U.S. Dep’t of Labor, No. 20-cv-3020 (S.D.N.Y. Aug. 3, 2020) (Oetken, J.) that vacated certain provisions of the Department of Labor rule implementing the provisions of the Families First Coronavirus Response Act.

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Updates: U.S. Department of Labor’s Wage and Hour Division Guidance on Leave Provisions of the Families First Coronavirus Response Act

Updated August 6, 2020 – On August 3, 2020, the Southern District of New York issued a decision in New York v. U.S. Dep’t of Labor, No. 20-cv-3020 (S.D.N.Y. Aug. 3, 2020) (Oetken, J.) that vacated certain provisions of the Department of Labor rule implementing the provisions of the Families First Coronavirus Response Act.

Read Our Updates: Part 1, Part 2 and Part 3


COVID-19 Pandemic—California Publishes “Employer Playbook for a Safe Reopening”: The Employer Playbook Sets Forth Guidance to Help Employers Prepare for Reopening Their Businesses and Support a Safe, Clean Working Environment

August 3, 2020 – On July 24, the California Department of Public Health published the COVID-19 Employer Playbook for a Safe Reopening. This memorandum summarizes the Playbook’s reopening guidance for California employers.

Read our Memo
 
S&C Critical Insights – Fiduciary Duty Conversations During COVID-19: Ways to Save a Business

July 30, 2020 – In this episode of S&C's Critical Insights podcast series, S&C partners Jim Bromley and Andy Dietderich, the co-heads of our Global Restructuring practice, discuss strategies for boards confronting the “zone of insolvency” during the COVID-19 crisis.

Listen to our Podcast
  

Updated: OSHA Issues Revised Enforcement Guidance on Recording COVID-19 Cases

Updated July 28, 2020 – On or around July 27, 2020, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) revised its COVID-19 Frequently Asked Questions webpage to remove certain guidance on when employers should report work-related COVID-19 fatalities or hospitalizations to OSHA.

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S&C Critical Insights – Emerging Business Continuity Planning for Boards During COVID-19 

July 24, 2020 – In this episode of S&C’s Critical Insights podcast series, M&A partners Eric Krautheimer and Melissa Sawyer discuss business continuity planning in light of the COVID-19 pandemic. Eric and Melissa review proactive steps boards can take in the best interest of their corporation while fulfilling their role as fiduciaries.

Listen to our Podcast
  
 
S&C Critical Insights – Emerging Issues in Private Securities Litigation

July 21, 2020 – In this episode of S&C’s Critical Insights podcast series, partners Jeff Scott and Julia Malkina review trends and emerging issues in private securities litigation. Topics include the record number of securities class actions filed last year, how state court proceedings have changed post-Cyan, and updates related to the COVID-19 pandemic.

Listen to our Podcast
 
 
S&C Critical Insights – Emerging Issues in Private Securities Litigation

July 21, 2020 – In this episode of S&C’s Critical Insights podcast series, partners Jeff Scott and Julia Malkina review trends and emerging issues in private securities litigation. Topics include the record number of securities class actions filed last year, how state court proceedings have changed post-Cyan, and updates related to the COVID-19 pandemic.

Listen to our Podcast
 
S&C Critical Insights – Trends and Priorities in SEC Enforcement

July 16, 2020 – In this episode of S&C’s Critical Insights podcast series, partners Jeff Scott and Julia Malkina discuss the priorities of the SEC’s Enforcement Division, as well as enforcement trends as reflected by the types and volume of enforcement actions that the SEC has brought during the last two years. They also offer guidance for handling SEC investigations in light of the agency’s priorities.

Listen to our Podcast
 

Updated: California Governor Newsom Announces Statewide Rollback on Reopening

Updated July 14, 2020 – On July 13, 2020, California Governor Gavin Newsom announced that, due to a rise in COVID-19 cases and hospitalizations, effective July 13, 2020, all counties statewide must close indoor operations for dine-in restaurants, wineries, movie theaters, family entertainment, zoos, museums and cardrooms.

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Updated: OSHA Issues General Guidance on Returning to Work

Updated July 7, 2020 – On July 2, 2020, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) published Frequently Asked Questions and Answers (“FAQs”) regarding its COVID-19-related guidance. Among other things, the FAQs clarify that OSHA “generally recommends” that employers encourage their employees to wear face coverings while at work and provide guidance on the steps employers should take after learning that an employee has tested positive for COVID-19.  This guidance has been incorporated in this updated post.

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Updated: California’s COVID-19 Industry Guidance for Reopening Office Workspaces

Updated July 6, 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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S&C Critical Insights – Best Practices for Boards Navigating Bankruptcy 

July 2, 2020 – In this episode of S&C’s Critical Insights podcast series, Melissa Sawyer and Marc Treviño, co-chairs of the Firm’s Corporate Governance practice, discuss best practices for boards of companies facing bankruptcy. The COVID-19 pandemic has forced many companies across a range of sectors to confront insolvency issues. Marc and Melissa provide an overview of the fiduciary duties of directors in these situations and identify potential opportunities and pitfalls.

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Updated: New York State Issues Phase Two Reopening Guidance for Businesses

Updated June 30, 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.    

Read our Memo

 


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

Updated June 30, 2020
– On June 26, 2020, New York Governor Andrew Cuomo signed an Executive Order which, among other things, amends the permissible reasons for an employee to take quarantine leave under New York law.  The amendment makes employees who voluntarily travel to certain high-risk states for non-work purposes ineligible for benefits under New York’s COVID-19 quarantine law (the "Act"), and has been incorporated into this updated post.

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S&C Critical Insights – European Capital Markets Activity During COVID-19 

June 30, 2020
– S&C partners Carsten Berrar, John Horsfield-Bradbury and Krystian Czerniecki discuss the future of European capital markets, and how issuers can adjust to the impact of the COVID-19 crisis.
 
Topics include lessons learned from capital raisings in recent months, such as the importance of European companies considering accessing U.S. markets to monitor disclosures of comparable U.S. companies and how valuation analysis will differ for IPOs due to the COVID-19 crisis. 

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SEC Issues Additional COVID-19 Disclosure Guidance

June 25, 2020
– On June 22, the SEC issued additional guidance (“Disclosure Guidance Topic No. 9A”) setting forth further views of the Division of Corporation Finance regarding operations, liquidity and capital resources disclosures that companies should consider with respect to business and market disruptions related to COVID-19.  Disclosure Guidance Topic No. 9A supplements Disclosure Guidance Topic No. 9, which provided the Division of Corporation Finance’s initial views on disclosure and other securities law obligations that companies should consider with respect to COVID-19, and is discussed in our memorandum to clients dated March 30, 2020, available here.

Read our Memo
S&C Critical Insights – Communications Strategies for Corporate Crises – COVID-19 Update

June 23, 2020 – Bob Giuffra and Paul Holmes, the CEO of North American operations at the global communications firm Finsbury, share their perspectives on corporations’ communications strategies during the COVID-19 crisis. They recommend navigating these new challenges by seeking legal, communications and government relations support early. They also discuss the importance of authenticity in corporate communications and real-time crisis management.

Listen to our P