Webinar Series: Reopening and Rebounding

Webinar Series: Reopening and Rebounding

Saul Ewing Arnstein & Lehr recently hosted a weekly webinar series on "Key Legal Considerations for Businesses Reopening and Rebounding" as the world entered the next phase of the COVID-19 pandemic. A multi-disciplinary team of attorneys presented one-hour webinars that covered practical steps companies can take to address top critical areas. Below are the leading topics we covered, which were chosen based on the core questions we received from our clients and from survey results, with links to key takeaways, webinar recordings and presentation materials. 

If you would like us to prioritize topics for future webinars, please complete this survey, and we will do our best to prepare presentations on the top requested areas.

 

Webinar Series Archive
Below are the concluded webinars in our series with links to reference materials.
Labor, Employment & Privacy Considerations

Wednesday, May 27, 2020

Presenters: Sandy Bilus, Carolyn Pellegrini and Henry Platt
Topic: This program included an in-depth discussion regarding employee-related considerations as businesses begin to reopen. Our speakers focused on what a return-to-work plan may look like, as well as potential privacy concerns businesses may face as employees reenter the workplace.

Key Takeaways
Webinar Recording
Presentation Materials

 

Contract Considerations Regarding Force Majeure in the COVID-19 Era

Wednesday, June 3, 2020

PresentersSwata GandhiJared Hawk and Joe Lipchitz
Topic: Across the globe, contracting parties are experiencing performance-related concerns resulting from unprecedented orders to shelter-in-place, closures of non-essential businesses, global travel restrictions, and social distancing/isolation policies that have been implemented in response to the COVID-19 pandemic. As a result, parties may be reviewing their existing contracts, especially the force majeure provisions, to determine whether performance obligations can be modified or cancelled in light of COVID-19. This program provided an overview of force majeure provisions and how they may be utilized, as well as current force majeure litigation and other considerations for future contracts.

Key Takeaways
Webinar Recording
Presentation Materials
Force Majeure Litigator's Checklist

Business Continuity Steps for Rebounding from the COVID-19 Pandemic

Wednesday, June 10, 2020

PresentersKermit Nash and Max Bremer
Topic: Whether a company is reopening or never ceased operations throughout the pandemic, businesses are refocusing and creating ways to rebound. This program addressed some legal considerations for them at this time, which included collecting and analyzing lessons learned from across their organizations, determining the most opportune ways for them to manage risk, and preparing for the next crisis.

Key Takeaways
Webinar Recording
Presentation Materials

Compliance Considerations and Enforcement Trends Surrounding the CARES Act

Thursday, June 18, 2020

Presenters: Nancy DePodesta and Natashia Tidwell
Topic: With more than $2 trillion marked for COVID-19 relief, the U.S. Department of Justice is prioritizing to act swiftly against pandemic-related irregularities. This presentation covered best practices for risk management and compliance surrounding the financial stimulus. In addition, the program recapped lessons learned from the 2008 financial crisis to forecast and survey likely enforcement trends in the post-COVID-19 economic landscape.

Key Takeaways
Webinar Recording
Presentation Materials

Restructuring Strategies in Light of COVID-19

Wednesday, June 24, 2020
11:00 a.m. – Noon (EDT)

PresentersJeffrey C. Hampton and Mark Minuti
Topic: COVID-19 has caused unprecedented business disruptions. A significant number of business operations have faced disruptions due to lack of demand, supply chain and manufacturing interruptions, and constrained credit markets, which have led to liquidity challenges. It is imperative for businesses to assess their financial positions and strategically plan in order to reduce the risk of financial distress and rebound as the economy begins to open. This program covered key strategic issues and trends that businesses should consider.

Key Takeaways
Webinar Recording
Presentation Materials

Privacy and Cybersecurity: Risks While Working Remotely

Monday, July 1, 2020
1:00 p.m. – 2:00 p.m. (EDT)

PresentersApril Falcon DossElizabeth S. Fenton and Kathryn Beaumont Murphy
Topic: As remote work during the COVID-19 pandemic becomes the new norm, organizations will need to secure long-term strategies for cybersecurity and data privacy for employees, clients, customers and students. This webinar dove into the various ways cyber actors are gaining access to data and systems and new privacy concerns that online work has for customer-facing services. We discussed the specific steps organizations should be taking in order to help stay safe in our new virtual world.

Key Takeaways
Webinar Recording
Presentation Materials

Labor, Employment & Privacy Considerations

Wednesday, May 27, 2020

Presenters: Sandy Bilus, Carolyn Pellegrini and Henry Platt
Topic: This program included an in-depth discussion regarding employee-related considerations as businesses begin to reopen. Our speakers focused on what a return-to-work plan may look like, as well as potential privacy concerns businesses may face as employees reenter the workplace.

Key Takeaways
Webinar Recording
Presentation Materials

 

Contract Considerations Regarding Force Majeure in the COVID-19 Era

Wednesday, June 3, 2020

PresentersSwata GandhiJared Hawk and Joe Lipchitz
Topic: Across the globe, contracting parties are experiencing performance-related concerns resulting from unprecedented orders to shelter-in-place, closures of non-essential businesses, global travel restrictions, and social distancing/isolation policies that have been implemented in response to the COVID-19 pandemic. As a result, parties may be reviewing their existing contracts, especially the force majeure provisions, to determine whether performance obligations can be modified or cancelled in light of COVID-19. This program provided an overview of force majeure provisions and how they may be utilized, as well as current force majeure litigation and other considerations for future contracts.

Key Takeaways
Webinar Recording
Presentation Materials
Force Majeure Litigator's Checklist

Business Continuity Steps for Rebounding from the COVID-19 Pandemic

Wednesday, June 10, 2020

PresentersKermit Nash and Max Bremer
Topic: Whether a company is reopening or never ceased operations throughout the pandemic, businesses are refocusing and creating ways to rebound. This program addressed some legal considerations for them at this time, which included collecting and analyzing lessons learned from across their organizations, determining the most opportune ways for them to manage risk, and preparing for the next crisis.

Key Takeaways
Webinar Recording
Presentation Materials

Compliance Considerations and Enforcement Trends Surrounding the CARES Act

Thursday, June 18, 2020

Presenters: Nancy DePodesta and Natashia Tidwell
Topic: With more than $2 trillion marked for COVID-19 relief, the U.S. Department of Justice is prioritizing to act swiftly against pandemic-related irregularities. This presentation covered best practices for risk management and compliance surrounding the financial stimulus. In addition, the program recapped lessons learned from the 2008 financial crisis to forecast and survey likely enforcement trends in the post-COVID-19 economic landscape.

Key Takeaways
Webinar Recording
Presentation Materials

Restructuring Strategies in Light of COVID-19

Wednesday, June 24, 2020
11:00 a.m. – Noon (EDT)

PresentersJeffrey C. Hampton and Mark Minuti
Topic: COVID-19 has caused unprecedented business disruptions. A significant number of business operations have faced disruptions due to lack of demand, supply chain and manufacturing interruptions, and constrained credit markets, which have led to liquidity challenges. It is imperative for businesses to assess their financial positions and strategically plan in order to reduce the risk of financial distress and rebound as the economy begins to open. This program covered key strategic issues and trends that businesses should consider.

Key Takeaways
Webinar Recording
Presentation Materials

Privacy and Cybersecurity: Risks While Working Remotely

Monday, July 1, 2020
1:00 p.m. – 2:00 p.m. (EDT)

PresentersApril Falcon DossElizabeth S. Fenton and Kathryn Beaumont Murphy
Topic: As remote work during the COVID-19 pandemic becomes the new norm, organizations will need to secure long-term strategies for cybersecurity and data privacy for employees, clients, customers and students. This webinar dove into the various ways cyber actors are gaining access to data and systems and new privacy concerns that online work has for customer-facing services. We discussed the specific steps organizations should be taking in order to help stay safe in our new virtual world.

Key Takeaways
Webinar Recording
Presentation Materials

Key Discussion Topics
Three Key Considerations for Addressing Financial Distress in a COVID-19 Economy

1. Review your credit facility to refresh your understanding of financial covenant requirements that may be at issue or subject to potential default in light of resulting business interruption and challenges. If there are any that present a concern, be prepared to discuss them with your lender in an effort to reach an understanding as to a waiver of the covenant requirement, a modification of the covenant benchmark, or a forbearance agreement to clarify that an exercise of remedies will not be pursued.

2. Consider the implications of customer financial challenges and the possibility of delayed or reduced invoice payments or no payments for an extended period of time. Explore potential rights under customer agreements and/or the Uniform Commercial Code (UCC) to alter current payment terms and, possibly, seek adequate assurance of future performance in accordance with the UCC.

3. Revisit cash flow projections and business plans to determine the potential need to modify current spending plans. Most importantly, communicate any such issues with your lender, as appropriate and keep a clear line of communication open going forward.

See our complete list here.

Three Key Cybersecurity and Privacy Considerations While Working Remotely

1. With employees working remotely, there is a heightened risk that they may handle information outside of secure channels. This increases the risk of unauthorized disclosures of information that must be protected under various privacy laws. It also increases the risk of bad actors accessing an organization’s data or systems.

2. Cyber criminals are taking advantage of the pandemic to launch phishing campaigns intended to lure email users into clicking on malicious links that appear to be legitimate information from public health officials and other news sources. These targeted, topical campaigns allow hackers to gain unauthorized access to user credentials, sensitive company information, protected personal data or financial information; to embed harmful ransomware; and/or to compromise the integrity of business email systems.

3. Cybersecurity is never just an IT issue—it’s always about the combination of people, processes and technol­ogy. In this pandemic, the people part of the equation has added significance—and risks. Companies, organizations and institutions should evaluate their cybersecurity and remote-work policies to determine whether updates are necessary. Employers should provide employees with refresher training on: policies for remote work; policies for data privacy (including privacy of hardcopy data and how to securely transfer, store, and access electronic information); the privacy risks associated with virtual teleconferencing and commercially available data sharing platforms; policies for secure data destruction; and the procedure for notifying the company of a suspected data or network compromise.

See our complete list here.

Three Key Labor and Employment Considerations for Employers as Businesses Begin to Reopen

1. Conduct necessary employee health and safety planning to comply with federal and state safety and health standards and to help mitigate risks. Review available information and guidance with the goal of creating a reasonable plan that can and will be followed. See our checklist here.

2. Review and update employment policies to ensure they are consistent with current public health recommendations and inform employees of changes prior to reopening.

3. Determine a strategy for responding to employees who resist returning to the workplace to ensure compliance with federal and state anti-discrimination laws, leave laws such as the Families First Coronavirus Response Act, and state and local COVID-19 orders.

Three Key Business Continuity Considerations for Rebounding From the COVID-19 Pandemic

1. Collect lessons learned across your entire organization, assess them, and determine how they can best contribute to your company rebounding from the current crisis and preparing for the next one. Select the steps that make the most sense for your company and assess any legal implications involved.

2. Analyze your organization’s business agility versus business resiliency and determine critical areas for improvement. Businesses have been faced with defining moments to demonstrate their resiliency to withstand the pandemic health crisis and government shut-down orders. Yet, they need to be agile in their business operations and legal considerations are the common thread of resiliency in preparation for the next crisis, whatever it may be.

3. Determine how your organization is best positioned to avoid risks throughout the rest of the year. While 2019 was the year for being innovative and taking risks, 2020 is now all about risk management. Corporate goals have shifted and mitigating risk is the new normal. Legal obligations, duties and planning need to be at the forefront of your business.

See our complete checklist here.

Three Key Compliance Considerations and Enforcement Trends Related to the CARES Act

1. Borrowers should remain alert to the risk of potential investigations and enforcement actions in connection with PPP loans even when acting in good faith. The DOJ has prioritized swift action against those suspected of pandemic-related illegal activity as evidenced by the first reported federal prosecution of PPP fraud in Rhode Island in which the borrowers did not act in good faith. For borrowers who are acting in good faith, be aware of potential investigations and enforcement actions against you because you may later be viewed as having obtained loans that were not “necessary” in light of murky (or even contradictory) guidance.

2. Large and small borrowers should still give careful thought to their need for SBA loans, and how they will demonstrate such necessity in the event of a later inquiry or audit. Borrowers should document efforts to obtain alternate financing or liquidity from other sources, and preserve documentary evidence of the results of those efforts. Similarly, borrowers should maintain accurate books and records on the disposition of loan proceeds received in order to be able to demonstrate that funds were ultimately used for their intended purpose.

3. Lessons learned from the 2008 financial crisis serve as a forecast for likely enforcement trends post-COVID-19. More than 400 individuals, both borrowers and lenders, were criminally charged for fraud in relation to the 2008 financial crisis relief packages. It is likely that CARES Act prosecutions will increase in time, so borrowers and lenders should be forewarned and forearmed. 

Five Key Force Majeure Considerations in the COVID-19 Era

1. Consider why force majeure may need to be invoked. Proper identification of the force majeure event will be very important. Determine what specifically is causing an impact on the party’s ability to perform under the contract, such as stay-at-home orders, shut-down of non-essential businesses or issues with the supply chain.

2. Examine whether the force majeure provision is triggered. What law governs your contract? Does the force majeure provision broadly excuse performance issues for events caused by conditions outside the reasonable control of the invoking party, but not list specific events? If specific events are listed, is the event at issue specified in the force majeure provision? Is the event at issue specifically excluded in the force majeure provision? Will the language used protect you in the specific jurisdiction?

3. Determine what other elements are covered in your force majeure provision. Does the governing law of the contract require notice, unforeseeability, mitigation? Should your provision include any "magic language"?

4. Consider whether other contractual defenses may apply. The common law doctrines of impracticality/impossibility of performance, frustration of purpose, material adverse change, and illegality may be helpful, especially if the contract does not include a force majeure provision or the force majeure provision is not helpful or triggered by the event at issue.

5. Do not treat force majeure as boilerplate when drafting contracts.

See our complete checklist here.

 

Three Key Considerations for Addressing Financial Distress in a COVID-19 Economy

1. Review your credit facility to refresh your understanding of financial covenant requirements that may be at issue or subject to potential default in light of resulting business interruption and challenges. If there are any that present a concern, be prepared to discuss them with your lender in an effort to reach an understanding as to a waiver of the covenant requirement, a modification of the covenant benchmark, or a forbearance agreement to clarify that an exercise of remedies will not be pursued.

2. Consider the implications of customer financial challenges and the possibility of delayed or reduced invoice payments or no payments for an extended period of time. Explore potential rights under customer agreements and/or the Uniform Commercial Code (UCC) to alter current payment terms and, possibly, seek adequate assurance of future performance in accordance with the UCC.

3. Revisit cash flow projections and business plans to determine the potential need to modify current spending plans. Most importantly, communicate any such issues with your lender, as appropriate and keep a clear line of communication open going forward.

See our complete list here.

Three Key Cybersecurity and Privacy Considerations While Working Remotely

1. With employees working remotely, there is a heightened risk that they may handle information outside of secure channels. This increases the risk of unauthorized disclosures of information that must be protected under various privacy laws. It also increases the risk of bad actors accessing an organization’s data or systems.

2. Cyber criminals are taking advantage of the pandemic to launch phishing campaigns intended to lure email users into clicking on malicious links that appear to be legitimate information from public health officials and other news sources. These targeted, topical campaigns allow hackers to gain unauthorized access to user credentials, sensitive company information, protected personal data or financial information; to embed harmful ransomware; and/or to compromise the integrity of business email systems.

3. Cybersecurity is never just an IT issue—it’s always about the combination of people, processes and technol­ogy. In this pandemic, the people part of the equation has added significance—and risks. Companies, organizations and institutions should evaluate their cybersecurity and remote-work policies to determine whether updates are necessary. Employers should provide employees with refresher training on: policies for remote work; policies for data privacy (including privacy of hardcopy data and how to securely transfer, store, and access electronic information); the privacy risks associated with virtual teleconferencing and commercially available data sharing platforms; policies for secure data destruction; and the procedure for notifying the company of a suspected data or network compromise.

See our complete list here.

Three Key Labor and Employment Considerations for Employers as Businesses Begin to Reopen

1. Conduct necessary employee health and safety planning to comply with federal and state safety and health standards and to help mitigate risks. Review available information and guidance with the goal of creating a reasonable plan that can and will be followed. See our checklist here.

2. Review and update employment policies to ensure they are consistent with current public health recommendations and inform employees of changes prior to reopening.

3. Determine a strategy for responding to employees who resist returning to the workplace to ensure compliance with federal and state anti-discrimination laws, leave laws such as the Families First Coronavirus Response Act, and state and local COVID-19 orders.

Three Key Business Continuity Considerations for Rebounding From the COVID-19 Pandemic

1. Collect lessons learned across your entire organization, assess them, and determine how they can best contribute to your company rebounding from the current crisis and preparing for the next one. Select the steps that make the most sense for your company and assess any legal implications involved.

2. Analyze your organization’s business agility versus business resiliency and determine critical areas for improvement. Businesses have been faced with defining moments to demonstrate their resiliency to withstand the pandemic health crisis and government shut-down orders. Yet, they need to be agile in their business operations and legal considerations are the common thread of resiliency in preparation for the next crisis, whatever it may be.

3. Determine how your organization is best positioned to avoid risks throughout the rest of the year. While 2019 was the year for being innovative and taking risks, 2020 is now all about risk management. Corporate goals have shifted and mitigating risk is the new normal. Legal obligations, duties and planning need to be at the forefront of your business.

See our complete checklist here.

Three Key Compliance Considerations and Enforcement Trends Related to the CARES Act

1. Borrowers should remain alert to the risk of potential investigations and enforcement actions in connection with PPP loans even when acting in good faith. The DOJ has prioritized swift action against those suspected of pandemic-related illegal activity as evidenced by the first reported federal prosecution of PPP fraud in Rhode Island in which the borrowers did not act in good faith. For borrowers who are acting in good faith, be aware of potential investigations and enforcement actions against you because you may later be viewed as having obtained loans that were not “necessary” in light of murky (or even contradictory) guidance.

2. Large and small borrowers should still give careful thought to their need for SBA loans, and how they will demonstrate such necessity in the event of a later inquiry or audit. Borrowers should document efforts to obtain alternate financing or liquidity from other sources, and preserve documentary evidence of the results of those efforts. Similarly, borrowers should maintain accurate books and records on the disposition of loan proceeds received in order to be able to demonstrate that funds were ultimately used for their intended purpose.

3. Lessons learned from the 2008 financial crisis serve as a forecast for likely enforcement trends post-COVID-19. More than 400 individuals, both borrowers and lenders, were criminally charged for fraud in relation to the 2008 financial crisis relief packages. It is likely that CARES Act prosecutions will increase in time, so borrowers and lenders should be forewarned and forearmed. 

Five Key Force Majeure Considerations in the COVID-19 Era

1. Consider why force majeure may need to be invoked. Proper identification of the force majeure event will be very important. Determine what specifically is causing an impact on the party’s ability to perform under the contract, such as stay-at-home orders, shut-down of non-essential businesses or issues with the supply chain.

2. Examine whether the force majeure provision is triggered. What law governs your contract? Does the force majeure provision broadly excuse performance issues for events caused by conditions outside the reasonable control of the invoking party, but not list specific events? If specific events are listed, is the event at issue specified in the force majeure provision? Is the event at issue specifically excluded in the force majeure provision? Will the language used protect you in the specific jurisdiction?

3. Determine what other elements are covered in your force majeure provision. Does the governing law of the contract require notice, unforeseeability, mitigation? Should your provision include any "magic language"?

4. Consider whether other contractual defenses may apply. The common law doctrines of impracticality/impossibility of performance, frustration of purpose, material adverse change, and illegality may be helpful, especially if the contract does not include a force majeure provision or the force majeure provision is not helpful or triggered by the event at issue.

5. Do not treat force majeure as boilerplate when drafting contracts.

See our complete checklist here.