The coronavirus (COVID-19) has spread to scores of countries and infected many thousands of people around the globe. We provide guidance below for boards and management in navigating this crisis and will update this page as developments warrant.
Recent Publications
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COVID-19 Update: New York Federal Court Vacates Parts of Families First Coronavirus Response Act Regulation
The District Court for the Southern District of New York issued a decision (the “Decision”) vacating parts of a temporary rule (the “Rule”) implementing the emergency family leave and paid sick leave requirements of the Families First Coronavirus Response Act (the “FFCRA”).
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COVID-19 Update: Additional Department of Labor Guidance on Wage and Hour Rules and Family and Medical Leave as Workplaces Reopen
The Department of Labor has issued additional guidance on critical issues regarding wage and hour, family and medical leave, discrimination, and returning furloughed employees to work as businesses reopen amid the COVID-19 pandemic.
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COVID-19 Update for Public Companies: Status of Temporary Relief
The SEC recently approved the NYSE’s rule proposal to extend until September 30, 2020, the temporary waiver of certain requirements under the NYSE’s shareholder approval rule. The waiver applies to equity issuances to related parties and equity issuances in private placements in excess of 20%. We describe this waiver and track the status of other temporary relief under SEC or stock exchange rules.
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SEC Staff Issues Additional COVID-19 Disclosure Guidance
The SEC’s Division of Corporation Finance provided additional guidance June 23 on disclosure matters that SEC reporting companies should consider with respect to COVID-19 and related business and market disruptions, updating guidance issued in March. The new guidance addresses liquidity and capital resources disclosure, among others, setting out a series of questions to help reporting companies properly frame COVID-19-related disclosures.
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COVID-19 Update: OSHA and EEOC Guidance on Returning to Work
The Occupational Safety and Health Administration (OSHA) recently issued guidance for “non-essential businesses” that have reopened or are preparing to reopen. Businesses are encouraged to reopen in three phases, addressing and implementing nine “guiding principles” to slow the spread of COVID-19. In addition, the EEOC recently clarified that employers should not require antibody testing before allowing employees to return to work; however, diagnostic testing is permissible.
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UPDATE: Federal Reserve Issues Updated Guidance and Publishes Legal Forms and Agreements for Main Street Lending Facilities
The Federal Reserve has issued a number of legal forms and agreements, with accompanying instructions, that must be submitted by eligible borrowers and lenders participating in the Main Street New Loan Facility, Main Street Expanded Loan Facility and Main Street Priority Loan Facility.
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UPDATE: Federal Reserve Issues Revised Term Sheets for Main Street Lending Facilities
On June 8, the Fed issued revised term sheets governing the Main Street New Loan Facility, the Main Street Expanded Loan Facility and the Main Street Priority Loan Facility, together with an updated set of frequently asked questions. The changes are intended to make the program more attractive to small and medium-sized businesses by reducing minimum loan amounts, increasing maximum loan amounts and extending the maturity date and deferment of principal payments for an additional year each.
Guidance for Employers
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COVID-19 Update: OSHA and EEOC Guidance on Returning to Work
The Occupational Safety and Health Administration (OSHA) recently issued guidance for “non-essential businesses” that have reopened or are preparing to reopen. Businesses are encouraged to reopen in three phases, addressing and implementing nine “guiding principles” to slow the spread of COVID-19. In addition, the EEOC recently clarified that employers should not require antibody testing before allowing employees to return to work; however, diagnostic testing is permissible.
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COVID-19 Update: New York Federal Court Vacates Parts of Families First Coronavirus Response Act Regulation
The District Court for the Southern District of New York issued a decision (the “Decision”) vacating parts of a temporary rule (the “Rule”) implementing the emergency family leave and paid sick leave requirements of the Families First Coronavirus Response Act (the “FFCRA”).
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COVID-19 Update: Additional Department of Labor Guidance on Wage and Hour Rules and Family and Medical Leave as Workplaces Reopen
The Department of Labor has issued additional guidance on critical issues regarding wage and hour, family and medical leave, discrimination, and returning furloughed employees to work as businesses reopen amid the COVID-19 pandemic.
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COVID-19 Update: Practical Considerations for Employers as They Prepare for a Return to the Workplace
Drawing on new guidance by the EEOC, the CDC and OSHA, we offer practical considerations for employers on navigating some of the difficult issues involved in planning and implementing a successful and safe return to the workplace.
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COVID-19 Update: New York State and CDC Guidance for Employers Reopening Offices
Under the NY Forward Reopening Plan, New York State has now issued guidance for reopening Phase Two industries.
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COVID-19 Update: New York State Guidance on Reopening Businesses
Under New York State’s reopening plan, non-essential businesses in the state’s 10 regions can begin reopening once their region meets seven metrics established to protect public health. Within each region that meets the public health requirements, businesses will reopen in four phases and are required to develop a written safety plan and comply with industry-specific guidelines. This memorandum summarizes the state’s guidance.
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Business Roundtable Releases Roadmap for Resumption of Economic Activity
On April 24, the Business Roundtable released its proposed framework for the resumption of economic activity. In response to the absence of federal or state guidelines, the Business Roundtable proposed a framework for developing guidelines on workplace and public safety, with the goal of building confidence among workers and consumers that they can safely return to work and public activity.
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CARES Act UPDATE: SBA Issues Additional Paycheck Protection Program Guidance, Including for Private Equity Firms and Hedge Funds
The SBA has issued a new interim final rule on the PPP program, which clarifies that private equity firms and hedge funds are ineligible for PPP loans.
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COVID-19 Update: NJ WARN Enhanced Severance and Notice Requirements for Lay-Offs Delayed Until 90 Days After State of Emergency Lifted; Does Not Apply to COVID-19 Required Layoffs
The New Jersey WARN law requiring severance for certain terminations that was scheduled to become effective on July 19 has been delayed.
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New York State Governor Signs Law Protecting Health Care Workers, Facilities and Administrators from COVID-19-Related Liability
Along with a collection of other states, New York has taken action to shield health care providers from liability arising from the difficult medical decisions presented by the pandemic.
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CARES Act UPDATE: SBA Issues Interim Final Rule for Paycheck Protection Program
On April 2, the Small Business Administration issued an interim final rule regarding implementation of the Paycheck Protection Program and on April 3, a revised loan application form was published. The rule and revised application form clarify certain issues raised under the CARES Act and previously issued guidance on the program, although in some respects is contrary to previously issued guidance.
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COVID-19: Layoff and Furlough Considerations for Employers
In light of the significant economic impact of the COVID-19 pandemic upon businesses, we address the legal considerations for employers and certain employee protections in connection with reductions of employee headcount and/or services.
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New York Passes Emergency Paid Sick Leave Law for COVID-19 Relief
New York Governor Andrew Cuomo signed a law guaranteeing paid sick leave to certain workers directly affected by COVID-19. We summarize key provisions of the bill, including criteria for employee eligibility, qualifying employers and restrictions on accessing the leave provisions.
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Coronavirus: Updated Guidance for Employers Issued by Federal, State, and City Agencies
The Trump Administration on March 16 released new guidelines over the next 15 days in hopes of slowing the spread of COVID-19. We provide updates on new federal, state and city guidelines and address challenges for employers striving to balance the imperatives of protecting employees’ health, minimizing business impacts, and respecting employees’ right to privacy and to work free from discrimination.
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The Impact of COVID-19 on Performance-Based Compensation Programs
As the coronavirus pandemic continues, we examine its impact on executive compensation and how public company boards should structure compensation at a time of economic uncertainty and market volatility, with a particular focus on performance-based compensation.
Client Alert Compendium
Download a Compendium of Coronavirus Client Alerts
To help answer your questions and potentially mitigate risks related to this fast-moving situation, we are providing a compendium of our most recent advisories and alerts related to the coronavirus outbreak.
» download
Federal Actions
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Congress Approves the Paycheck Protection Program Flexibility Act
Congress recently passed the “Paycheck Protection Program Flexibility Act.” The act extends the forgiveness period and repayment deferment period for loans borrowed under the Small Business Administration’s Paycheck Protection Program (PPP), requires at least 60% of loan proceeds to be used on payroll costs and extends the minimum loan maturity date. The act also reverses a CARES Act provision that prohibited PPP borrowers who receive loan forgiveness to also avail themselves of the CARES Act’s payroll tax deferment opportunities.
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UPDATE: Federal Reserve Issues Revised Term Sheets for Main Street Lending Facilities
On June 8, the Fed issued revised term sheets governing the Main Street New Loan Facility, the Main Street Expanded Loan Facility and the Main Street Priority Loan Facility, together with an updated set of frequently asked questions. The changes are intended to make the program more attractive to small and medium-sized businesses by reducing minimum loan amounts, increasing maximum loan amounts and extending the maturity date and deferment of principal payments for an additional year each.
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UPDATE: Federal Reserve Issues Revised Term Sheets and Guidance for Main Street Lending Facilities, Announces New Main Street Priority Lending Facility
On April 30, the Fed issued revised term sheets for the two previously announced Main Street lending facilities, as well as a term sheet for the new Main Street Priority Loan Facility. The Fed expanded certain criteria for eligible borrowers.
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Senate Approves $310 Billion in Additional Funding for the Paycheck Protection Program
The Senate has passed the “Paycheck Protection Program and Health Care Enhancement Act” to provide up to $484 billion in additional funding for COVID-19 relief programs, including $310 billion for the Small Business Administration’s Paycheck Protection Program (PPP), with $60 billion reserved for smaller, local lenders.
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UPDATE: Federal Reserve Issues Updated Guidance and Publishes Legal Forms and Agreements for Main Street Lending Facilities
The Federal Reserve has issued a number of legal forms and agreements, with accompanying instructions, that must be submitted by eligible borrowers and lenders participating in the Main Street New Loan Facility, Main Street Expanded Loan Facility and Main Street Priority Loan Facility.
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CARES Act UPDATE: SBA Issues Additional Paycheck Protection Program Guidance, Including for Private Equity Firms and Hedge Funds
The SBA has issued a new interim final rule on the PPP program, which clarifies that private equity firms and hedge funds are ineligible for PPP loans.
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Federal Reserve Announces Seven New or Updated Lending Facilities, Including Main Street Lending Facilities
The Federal Reserve announced seven lending facilities that will provide up to $2.3 trillion in loans to support the economy. We summarize the new facilities and updates to the terms of the previously announced facilities.
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CARES Act UPDATE: SBA Issues Interim Final Rule for Paycheck Protection Program
On April 2, the Small Business Administration issued an interim final rule regarding implementation of the Paycheck Protection Program and on April 3, a revised loan application form was published. The rule and revised application form clarify certain issues raised under the CARES Act and previously issued guidance on the program, although in some respects is contrary to previously issued guidance.
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CARES Act: Federal Income Tax Relief for Individuals and Businesses in Response to the Coronavirus Pandemic
The CARES Act makes a number of significant changes to the federal income taxation of both individual taxpayers and businesses that are generally intended to provide near-term liquidity and economic relief.
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Key Provisions of the “Phase Three” COVID-19 Stimulus Package
With the passage of the Coronavirus Aid, Relief, and Economic Security Act now imminent, we summarize key provisions of the emergency stimulus package, including relief for small businesses; emergency funding for companies suffering severe financial impacts; relief for individual taxpayers; and measures to support the healthcare response.
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CARES Act to Expand Access to the SBA Loan Program
The CARES Act includes a new Small Business Act loan program that offers forgivable loans and waives certain affiliate aggregation requirements maintained by other SBA loans. We discuss the loan program and its implications for private equity firms and their portfolio companies.
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U.S. State Department Issues Unprecedented Global Travel Advisory
The State Department has issued a Level 4 (Do Not Travel) advisory for all travel outside the United States. It advises U.S. citizens not to travel abroad and U.S. citizens abroad who reside in the United States to return home if possible. The action adds to travel confusion as an increasing number of countries around the world are closing their borders to non-citizens, restricting air travel or closing airports.
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Congress Passes COVID-19 Relief Package
On March 18, the Senate approved an emergency relief bill to provide financial support for individuals affected by the COVID-19 pandemic. The Families First Coronavirus Response Act (FFCRA) enhances paid sick, family and medical leave; provides for free coronavirus testing for all individuals, including the uninsured; bolsters unemployment insurance benefits; and increases funding for food assistance programs. We summarize key benefits and highlight certain provisions of the Act.
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Ban on Travel from Europe: Additional Details Are Released; the UK and Ireland Are Added to the List
The UK and Ireland have been added to the existing ban on entry into the U.S. of foreign nationals who have been in any of 26 countries in Europe during the 14 days prior to their entry.
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The United States Imposes a Ban on Travel from Schengen Area Countries
President Trump signed a proclamation restricting and suspending the entry into the United States of foreign nationals who have been within Europe’s Schengen Area during the 14 days prior to their entry. U.S. citizens and others not covered by the ban may be subjected to screening or quarantine procedures.
Corporate Governance & Risk Management
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COVID-19 Update for Public Companies: NYSE Provides Temporary Relief for the 20% Shareholder Approval Requirement
The SEC approved, with immediate effect, a proposed NYSE rule change that provides NYSE-listed companies with a temporary COVID-19 exception through June 30 to the 20% shareholder approval requirement for private placements. The change also includes a related narrow exception for any affiliated purchaser participating in these placements.
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COVID-19 Update for Public Companies: Status of Temporary Relief
The SEC recently approved the NYSE’s rule proposal to extend until September 30, 2020, the temporary waiver of certain requirements under the NYSE’s shareholder approval rule. The waiver applies to equity issuances to related parties and equity issuances in private placements in excess of 20%. We describe this waiver and track the status of other temporary relief under SEC or stock exchange rules.
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SEC Staff Issues Additional COVID-19 Disclosure Guidance
The SEC’s Division of Corporation Finance provided additional guidance June 23 on disclosure matters that SEC reporting companies should consider with respect to COVID-19 and related business and market disruptions, updating guidance issued in March. The new guidance addresses liquidity and capital resources disclosure, among others, setting out a series of questions to help reporting companies properly frame COVID-19-related disclosures.
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False Claims Act Liability in the Age of COVID-19
The CARES Act and other COVID-19 relief measures have brought new focus on the False Claims Act, a potent tool used by the government and private whistleblowers for pursuing government fraud claims. This memo provides a primer on the key aspects of FCA civil and criminal liability, identifies the primary areas of risk under the CARES Act and discusses strategies for mitigating FCA exposure.
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SEC Charges Company with COVID-19-Related Securities Fraud, Reaffirming its Focus on Public Statements and Disclosures Relating to COVID-19
The SEC recently brought its first enforcement action arising out of the COVID-19 pandemic. The action reaffirms the Commission’s laser focus on companies’ statements concerning, and responses to, the pandemic.
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COVID-19 Update for Public Companies: Nasdaq Provides Temporary Relief as to the 20% Shareholder Approval Requirement
The SEC recently approved a rule change that provides Nasdaq-listed companies with a limited temporary exception to the shareholder approval requirement for private placements and a narrow related exception for an affiliate’s participation in these placements.
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COVID-19 Update for Public Companies: Nasdaq and NYSE Tolling Periods
In light of the continuing, unprecedented decline in the U.S. and global equity markets, the NYSE and the Nasdaq Stock Market recently modified their listing requirements relating to market capitalization and $1.00 minimum price (in the case of NYSE-listed companies) and to market value of publicly held shares and $1.00 minimum bid price (for Nasdaq-listed companies), in each case by tolling the applicable compliance periods.
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COVID-19 Update: NYSE Shareholder Approval for Related Party and 20% Issuances Temporarily Waived and Minimum Market Capitalization Standard Temporarily Suspended
The SEC is temporarily waiving certain requirements under the NYSE’s shareholder approval rule applicable to equity issuances to related parties and equity issuances in private placements in excess of 20%.
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COVID-19 Update: SEC and Nasdaq Response and Updated SEC C&DIs
Nasdaq recently addressed some questions that Nasdaq-listed companies may have related to disruptions caused by COVID-19. Concurrently, the SEC Staff provided new guidance regarding Form 144 filing requirements in light of COVID-19 concerns, and the SEC updated its Compliance and Disclosure Interpretations in connection with its earlier order providing a 45-day grace period for filings.
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Delaware Governor Issues Emergency Order Permitting Notice of Virtual-Only Shareholder Meetings by Exchange Act Filing and Press Release
Delaware’s governor issued an emergency order permitting Delaware public corporations to re-notice or adjourn annual or special shareholder meetings as virtual-only meetings solely by a filing and a press release.
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Update: Mitigating Securities Litigation Risks Related to the Coronavirus
As an update to our earlier alert, “Mitigating Securities Litigation Risks Related to the Coronavirus,” we look at key takeaways from the first two securities fraud class action filings related to COVID-19 disclosures and outline additional steps companies can take to mitigate the risks associated with COVID-19-linked shareholder litigation.
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SEC Extends Conditional Reporting Relief; CorpFin Staff Issues COVID-19 Disclosure Guidance
The SEC announced March 25th that it was extending filing periods covered by the conditional reporting relief announced March 4. Concurrently, the Division of Corporation Finance issued guidance and questions for reporting companies to consider regarding disclosure and securities law obligations related to COVID-19-related impacts.
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COVID-19: Withdrawing or Revising Earnings Guidance
In recent days, scores of companies have either withdrawn or revised downward previously issued guidance due to the continuing adverse impacts of the COVID-19 pandemic, with most opting to withdraw. We highlight important areas to consider in determining whether to withdraw or revise guidance in light of the current situation.
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The Coronavirus: Certain Considerations for Public Companies
As the coronavirus (COVID-19) pandemic continues to slow commerce, most companies face serious challenges in almost all areas of their businesses. The recent turmoil and volatility of public financial markets has resulted in many companies facing significant decreases in their share prices. We highlight below certain key areas for boards of directors and senior management teams to consider in light of the rapidly changing landscape.
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The Impact of COVID-19 on Performance-Based Compensation Programs
As the coronavirus pandemic continues, we examine its impact on executive compensation and how public company boards should structure compensation at a time of economic uncertainty and market volatility, with a particular focus on performance-based compensation.
Litigation, Regulatory & White Collar
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DOJ Announces Preliminary Inquiry into Potential Fraud in the Paycheck Protection Program
A senior DOJ official recently stated publicly that the DOJ has initiated a preliminary inquiry into potential fraud in the CARES Act’s Paycheck Protection Program and has already found possible fraud among businesses seeking relief.
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Class Actions Target Ticket and Membership Refunds in the Wake of COVID-19
Many businesses forced to cancel or postpone scheduled events as a result of the COVID-19 pandemic now face an unprecedented risk of class action lawsuits. We summarize emerging trends in class action litigation and present possible defense strategies and key considerations moving forward.
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SEC Charges Company with COVID-19-Related Securities Fraud, Reaffirming its Focus on Public Statements and Disclosures Relating to COVID-19
The SEC recently brought its first enforcement action arising out of the COVID-19 pandemic. The action reaffirms the Commission’s laser focus on companies’ statements concerning, and responses to, the pandemic.
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DOJ and FTC Issue Warning on Anticompetitive Conduct Affecting Labor Markets During the COVID-19 Pandemic
A new DOJ-FTC joint antitrust statement regarding COVID-19 and competition in labor markets issued April 13 is an important reminder that anticompetitive labor practices may lead to civil or even criminal liability in certain circumstances.
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DOJ Issues Expedited Antitrust Guidance Regarding COVID-19 Equipment and Medication Distribution Collaboration
The DOJ issued a business review letter pursuant to the recently announced expedited procedures for reviewing collaborations between businesses working to advance health and safety during the COVID-19 pandemic.
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Appellate Litigation in the Age of COVID-19
The U.S. Supreme Court and other federal and state appellate courts are adjusting their practices in response to the COVID-19 pandemic. Courts are canceling arguments, postponing them, or providing for telephonic arguments and are making other adjustments in procedures, schedules and formats. We provide an overview of the steps taken to date by the Supreme Court, federal courts of appeals and state appellate courts in light of the ongoing emergency.
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White-Collar Enforcement Priorities in the Wake of COVID-19
The DOJ and SEC have signaled an intention to focus on misconduct related specifically to the coronavirus, at least temporarily. Combined with ongoing practical limitations, that focus has slowed down traditional white-collar enforcement activity. As the pandemic recedes, however, there is reason to expect robust investigative activity by the SEC, DOJ, state attorneys general and newly-created oversight bodies.
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An Update on Merger Review During the COVID-19 Coronavirus Outbreak: Early Terminations to Resume
U.S. antitrust agencies are now resuming the practice of granting early terminations of HSR waiting periods in merger reviews. As we discussed in our memorandum last week, the FTC and DOJ temporarily suspended the practice while the agencies transitioned to working remotely. Competition review and approval delays remain possible on a global basis.
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Antitrust Guidance for Business Collaborations to Combat COVID-19
On March 24, the FTC’s Bureau of Competition and the DOJ’s Antitrust Division issued a Joint Statement providing guidance and expedited procedures for reviewing collaborations between businesses working to advance health and safety during the COVID-19 pandemic. The new procedures may allow businesses seeking to collaborate in combating COVID-19 to gain clarity regarding the agencies’ views of such practices on an accelerated basis.
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SEC Enforcement Co-Directors Issue Statement on Potential Insider Trading and Selective Disclosure Risks Related to COVID-19
On March 23, SEC Division of Enforcement Co-Directors Stephanie Avakian and Steven Peikin issued a statement concerning “market integrity” in light of the unprecedented impacts of the COVID-19 pandemic.
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New York and Delaware Take Steps to Toll Limitations Periods and Extend Other Deadlines in Light of COVID-19 Emergency
State governments have begun to take broad actions to make wholesale adjustments to litigation deadlines in light of the challenges presented by the COVID-19 public health emergency. We describe the procedural and substantive implications for litigants in civil courts in New York and Delaware.
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Merger Review During the COVID-19 Coronavirus Outbreak
U.S. and E.U. competition agencies have announced temporary changes in their merger review procedures as a result of the COVID-19 pandemic. Significantly, the U.S. antitrust agencies will not grant any requests for early termination. Competition review and approval delays are possible on a global basis. We review developments in competition enforcement in light of the pandemic.
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State AGs Respond to COVID-19-Related “Price Gouging” and DOJ Antitrust Enforcement to Focus on Public Health Products
Attorneys general in California, New York and Washington have announced they will take action against “price gouging,” while the Antitrust Division said it will watch for collusive practices in the sale of critical public health products.
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Mitigating Securities Litigation Risks Related to the Coronavirus
The spread of coronavirus has disrupted global businesses and triggered severe U.S. stock market declines. These events raise the risk that shareholders will convert these stock drops into litigation. We address the securities litigation risks and suggest steps companies may decide to take to mitigate these risks.
Restructuring, Finance & Real Estate
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UPDATE: Federal Reserve Issues Revised Term Sheets for Main Street Lending Facilities
On June 8, the Fed issued revised term sheets governing the Main Street New Loan Facility, the Main Street Expanded Loan Facility and the Main Street Priority Loan Facility, together with an updated set of frequently asked questions. The changes are intended to make the program more attractive to small and medium-sized businesses by reducing minimum loan amounts, increasing maximum loan amounts and extending the maturity date and deferment of principal payments for an additional year each.
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UPDATE: New York State Extends Eviction and Foreclosure Moratoria, and Provides Certain Additional Benefits to Residential Tenants, During the Coronavirus Pandemic
New York Governor Andrew Cuomo recently issued an executive order that, among other things, extends moratoria on tenant evictions and mortgage foreclosures.
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UPDATE: New York City Eliminates Personal Liability of Individual Guarantors under Certain Retail Leases, for Payment Defaults Occurring during the Coronavirus Pandemic
New York City has eliminated the personal liability of individual guarantors under certain retail leases for defaults between March 7 and September 30, 2020.
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UPDATE: Federal Reserve Issues Updated Guidance and Publishes Legal Forms and Agreements for Main Street Lending Facilities
The Federal Reserve has issued a number of legal forms and agreements, with accompanying instructions, that must be submitted by eligible borrowers and lenders participating in the Main Street New Loan Facility, Main Street Expanded Loan Facility and Main Street Priority Loan Facility.
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UPDATE: Federal Reserve Issues Revised Term Sheets and Guidance for Main Street Lending Facilities, Announces New Main Street Priority Lending Facility
On April 30, the Fed issued revised term sheets for the two previously announced Main Street lending facilities, as well as a term sheet for the new Main Street Priority Loan Facility. The Fed expanded certain criteria for eligible borrowers.
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Federal Reserve Announces Seven New or Updated Lending Facilities, Including Main Street Lending Facilities
The Federal Reserve announced seven lending facilities that will provide up to $2.3 trillion in loans to support the economy. We summarize the new facilities and updates to the terms of the previously announced facilities.
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COVID-19: LIBOR 2021 Cessation Timing Unchanged Though Planning Delays Expected
Notwithstanding COVID-19-related market volatility and associated challenges faced by market participants, UK regulators have affirmed that the timetable for LIBOR’s anticipated cessation at the end of calendar year 2021 currently remains unchanged.
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An Update on Merger Review During the COVID-19 Coronavirus Outbreak: Early Terminations to Resume
U.S. antitrust agencies are now resuming the practice of granting early terminations of HSR waiting periods in merger reviews. As we discussed in our memorandum last week, the FTC and DOJ temporarily suspended the practice while the agencies transitioned to working remotely. Competition review and approval delays remain possible on a global basis.
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Antitrust Guidance for Business Collaborations to Combat COVID-19
On March 24, the FTC’s Bureau of Competition and the DOJ’s Antitrust Division issued a Joint Statement providing guidance and expedited procedures for reviewing collaborations between businesses working to advance health and safety during the COVID-19 pandemic. The new procedures may allow businesses seeking to collaborate in combating COVID-19 to gain clarity regarding the agencies’ views of such practices on an accelerated basis.
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CARES Act to Expand Access to the SBA Loan Program
The CARES Act includes a new Small Business Act loan program that offers forgivable loans and waives certain affiliate aggregation requirements maintained by other SBA loans. We discuss the loan program and its implications for private equity firms and their portfolio companies.
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UPDATE: New York State Legislature Considers Bill Affecting Certain Rents and Mortgage Payments During the Coronavirus Pandemic
In recent days, state and local governments have begun requiring the closure of non-essential businesses in order to combat the coronavirus (COVID-19) pandemic, significantly affecting the ability of affected businesses and individuals to continue to meet existing financial obligations, including paying rent.
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New York DFS Issues Emergency Regulation on Mortgage Forbearance and Certain Fees in Response to COVID-19 Pandemic
Under an emergency regulation issued by the NY Department of Financial Services, DFS-regulated banking organizations and mortgage servicers must grant a 90-day forbearance on residential mortgage payments for New York residents who can demonstrate financial hardship due to the COVID-19 pandemic.
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Gov. Cuomo Requires New York-Regulated Banks to Grant Forbearances in Light of the COVID-19 Pandemic and Issues Related Directives to NY DFS
N.Y. Gov. Andrew Cuomo has issued an executive order temporarily deeming the failure of a New York-regulated bank to grant a forbearance to an individual or business in certain circumstances an “unsafe and unsound” business practice.
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Abandonment of Leases and Abatement of Rent During the Coronavirus Pandemic
As a result of increasingly restrictive government public health measures, including closures of non-essential businesses and even orders to “shelter in place,” retailers across the country have begun trimming hours of operation or closing their stores entirely, and tenants are weighing whether to abandon premises they lease or to withhold rent.
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COVID-19: Layoff and Furlough Considerations for Employers
In light of the significant economic impact of the COVID-19 pandemic upon businesses, we address the legal considerations for employers and certain employee protections in connection with reductions of employee headcount and/or services.
Tax
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CARES Act Update: Internal Revenue Service Disallows Deduction of Certain Expenses Funded with PPP Loan Proceeds
The IRS recently issued a notice specifying that taxpayers that receive a loan under the CARES Act’s Paycheck Protection Program may not deduct business expenses funded with PPP loan proceeds to the extent the PPP loan is forgiven.
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Internal Revenue Code Section 83(b) Deadline Extended to July 15, 2020 as a Result of COVID-19
As a result of the COVID-19 pandemic, the 30-day period for making an Internal Revenue Code Section 83(b) election with respect to grants of restricted property has been extended to July 15, 2020.
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CARES Act: Federal Income Tax Relief for Individuals and Businesses in Response to the Coronavirus Pandemic
The CARES Act makes a number of significant changes to the federal income taxation of both individual taxpayers and businesses that are generally intended to provide near-term liquidity and economic relief.
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Internal Revenue Service Postpones April 15 Federal Income Tax Payment and Tax Return Filing Deadlines
On March 20, the Internal Revenue Service issued Notice 2020 18 postponing the April 15 federal income tax payment and tax return deadline to July 15, 2020. The Notice supersedes the relief previously issued in Notice 2020-17 described in our prior alert, which had provided more limited relief.
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Internal Revenue Service Postpones Certain April 15 Federal Income Tax Payment Deadlines
On March 18, the IRS announced that individual taxpayers would be allowed to defer up to $1 million and corporations would be allowed to defer $10 million of federal income tax payments (including federal estimated income tax payments) due on April 15 for up to 90 days without penalties or interest.
Investment Funds
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CARES Act UPDATE: SBA Issues Additional Paycheck Protection Program Guidance, Including for Private Equity Firms and Hedge Funds
The SBA has issued a new interim final rule on the PPP program, which clarifies that private equity firms and hedge funds are ineligible for PPP loans.
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COVID-19 UPDATE: SEC Extends Relief to Form ADV and Form PF Filing and Delivery Obligations Due On or Before June 30th
The SEC has issued a Superseding Order extending relief to Form ADV and Form PF filing and delivery obligations for which the original due date is between March 13, 2020 and June 30, 2020.
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COVID-19: Certain Consideration for Open-Ended Fund Managers; Looking at 3/31, and Beyond
As financial markets continue to exhibit extreme volatility as a result of COVID-19, related macro factors and oil price movements, managers of hedge funds, as well as other open-ended and evergreen funds, should assess challenges and vulnerabilities to their businesses, as well as potential opportunities.
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SEC Provides Investment Advisers Whose Operations Are Disrupted by Coronavirus with Extensions for Form ADV and Form PF
The SEC has issued an Order providing investment advisers who are unable to meet a filing deadline or delivery requirement due to circumstances related to current or potential effects of coronavirus (COVID-19) with a 45-day extension to file or deliver, as applicable, an annual amendment to Form ADV and Form PF.
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COVID-19: Certain Considerations for Hedge Fund Managers
The wide-ranging and uncertain impacts of the coronavirus outbreak (COVID-19) on markets and businesses are creating a variety of challenges, as well as opportunities, for hedge funds. Hedge fund managers may want to consider a variety of steps to prepare themselves and their funds to weather the outbreak’s impact.
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COVID-19: Certain Fund-Related Considerations for Private Equity Managers
The cascading impacts of the coronavirus on markets and businesses are creating a variety of challenges and opportunities for private equity funds. General partners may want to consider a variety of proactive steps, including reviewing investment objectives, altering fund documents and being more proactive in information sharing, valuations and reporting.
New York State Actions
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COVID-19 Update: New York State and CDC Guidance for Employers Reopening Offices
Under the NY Forward Reopening Plan, New York State has now issued guidance for reopening Phase Two industries.
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COVID-19 Update: New York Federal Court Vacates Parts of Families First Coronavirus Response Act Regulation
The District Court for the Southern District of New York issued a decision (the “Decision”) vacating parts of a temporary rule (the “Rule”) implementing the emergency family leave and paid sick leave requirements of the Families First Coronavirus Response Act (the “FFCRA”).
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UPDATE: New York City Eliminates Personal Liability of Individual Guarantors under Certain Retail Leases, for Payment Defaults Occurring during the Coronavirus Pandemic
New York City has eliminated the personal liability of individual guarantors under certain retail leases for defaults between March 7 and September 30, 2020.
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New York State Governor Signs Law Protecting Health Care Workers, Facilities and Administrators from COVID-19-Related Liability
Along with a collection of other states, New York has taken action to shield health care providers from liability arising from the difficult medical decisions presented by the pandemic.
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COVID-19 Update: New York State Guidance on Reopening Businesses
Under New York State’s reopening plan, non-essential businesses in the state’s 10 regions can begin reopening once their region meets seven metrics established to protect public health. Within each region that meets the public health requirements, businesses will reopen in four phases and are required to develop a written safety plan and comply with industry-specific guidelines. This memorandum summarizes the state’s guidance.
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New York DFS Issues Emergency Regulation on Mortgage Forbearance and Certain Fees in Response to COVID-19 Pandemic
Under an emergency regulation issued by the NY Department of Financial Services, DFS-regulated banking organizations and mortgage servicers must grant a 90-day forbearance on residential mortgage payments for New York residents who can demonstrate financial hardship due to the COVID-19 pandemic.
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Gov. Cuomo Requires New York-Regulated Banks to Grant Forbearances in Light of the COVID-19 Pandemic and Issues Related Directives to NY DFS
N.Y. Gov. Andrew Cuomo has issued an executive order temporarily deeming the failure of a New York-regulated bank to grant a forbearance to an individual or business in certain circumstances an “unsafe and unsound” business practice.
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New York and Delaware Take Steps to Toll Limitations Periods and Extend Other Deadlines in Light of COVID-19 Emergency
State governments have begun to take broad actions to make wholesale adjustments to litigation deadlines in light of the challenges presented by the COVID-19 public health emergency. We describe the procedural and substantive implications for litigants in civil courts in New York and Delaware.
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New York DFS Grants Temporary Relief and Requires Regulated Entities to Submit Descriptions of COVID-19 Preparedness Plans
The N.Y. Department of Financial Services (DFS) has taken a number of recent steps in response to the COVID-19 pandemic, including granting temporary regulatory relief and filing extensions to regulated entities, and requiring such entities to make submissions regarding their COVID-19 preparedness plans.
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New York Passes Emergency Paid Sick Leave Law for COVID-19 Relief
New York Governor Andrew Cuomo signed a law guaranteeing paid sick leave to certain workers directly affected by COVID-19. We summarize key provisions of the bill, including criteria for employee eligibility, qualifying employers and restrictions on accessing the leave provisions.
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What Does New York’s Declaration of a State of Emergency Mean for Business?
New York recently declared a state of emergency in response to the spread of the coronavirus. Companies operating in New York should be mindful of how their business operations and obligations may be affected.
Additional Insights
Read More Advisories on the COVID-19 Crisis
As the COVID-19 crisis continues to evolve, we are committed to providing you with the latest guidance in navigating the situation. We invite you to view a complete list of client alerts that we have published on a wide range of legal issues related to the pandemic.