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Archive for the ‘Coronavirus – Commercial Contracts and Risk Management’ Category

COVID-19: Bankruptcy and its Impact on Managing Risk

Posted on: April 7th, 2020

By: Jake Carroll

In the wake of COVID-19 and the now-present economic uncertainty, individuals and companies may be considering the impacts of bankruptcy. While bankruptcy can offer certain protections, including delayed payments, discharge of some debts, and a general “fresh-start,” not all debts are dischargeable, and certain obligations could survive after the bankruptcy.

The decision to file for bankruptcy relief, or seek alternative asset protection, can be dependent on several factors, and should not be undertaken without seeking legal counsel, as well as the advice of financial advisors and other risk management professionals. A hasty or poorly-reasoned decision can have negative impacts on many business and personal rights, and limit other options for debt relief or reorganization. FMG’s April 9, 2020 Webinar, COVID-19’s Cascading Impact on Corporate Finances and Loan Obligations (click here to register), will address these issues in greater detail. In the meantime, FMG has prepared a list of Frequently Asked Questions and answers addressing bankruptcy issues below:

  • What is bankruptcy?  Bankruptcy is a general term used to describe proceedings in federal court in which consumers and businesses make seek to delay or reduce their payments, shed debt, and repay creditors only on specialized terms or conditions.
  • Who can file for bankruptcy? As long as you meet certain eligibility criteria, and have not recently filed for bankruptcy, relief may available for both individuals and businesses.
  • Is bankruptcy the same as a receivership? No, although they are similar proceedings.  Receiverships are primarily governed by state laws and involve liquidations of assets by an appointed receiver under court supervision.
  • What are the different bankruptcy “Chapters,” and what is the Importance? Chapters 7, 11, and 13, are the most common types of bankruptcies, and refer to three different Chapters of the Bankruptcy Code, Title 11 of the United States Code. Each Chapter applies to a different situation:
    • Chapter 7.  Chapter 7 bankruptcies are liquidation proceedings for businesses and individuals. In a Chapter 7 proceeding, property is typically sold in order to pay back debts based on secured priorities and formulas determined by the Court.
    • Chapter 11. Chapter 11 bankruptcies are normally used by struggling businesses as a way to get their affairs in order and pay off their debts, while ultimately retaining control of the company. Some individuals may also file for Chapter 11 when they are not eligible for Chapter 13 or own large amounts of non-exempt property (like several homes)..
    • Chapter 13.   Chapter 13 bankruptcies, like Chapter 11, are also used for “reorganizations,” but will involve the appointment of a trustee who can control personal and corporate decisions.   In Chapter 13, a debtor may be allowed to keep some property, but must submit and stick to a plan that will allow repayment of some or all debts within three to five years.
  • What is the automatic stay? The bankruptcy court offers certain protections to debtors during bankruptcy proceedings, the first of which is an “automatic stay” that prohibits creditors from taking action against you or your assets without further order of the Court.
  • What do I do if I receive a notice of a bankruptcy from someone who owes me money? Given the relatively quick pace and potentially significant impacts bankruptcy proceedings can have on outstanding debts, you should contact your attorney or seek legal counsel as soon as possible to ensure your rights are protected, and that all necessary forms are filed to protect your financial interests in any recovery.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include COVID-19’s impact on finances and loans, the FFCRA, the CARES Act and more. Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.** 

Zoom Class Action Raises Privacy Concern with Favored Online Meeting Platform

Posted on: April 2nd, 2020

By: Barry Miller

A class action filed March 30 alleges that the popular Zoom Video Communications platform is rife with privacy concerns.

That story has piqued the interest of the legal community, as Zoom has become the platform of choice among mediators working to resolve disputes during a time when in-person meetings are prohibited or discouraged.

The class action, Cullen v. Zoom Video Communications, Inc., 5:20-cv-02155 (N.D. Cal.), alleges that Zoom “has failed to properly safeguard the personal information of the increasing millions of users of its software application….” It states that “[u]pon installing or upon each opening of the Zoom App, Zoom collects the personal information of its users and discloses, without adequate notice or authorization, this personal information of its users….”

The lawsuit states claims under the California Consumer Privacy Act, as well as the state’s Unlawful and Unfair Business Practices and Consumers Legal Remedies laws. It also makes common-law claims for negligence, invasion of privacy, and unjust enrichment.

Forbes magazine reported yesterday that some users are complaining that the recording of private chats in Zoom results in disclosing chats thought to be private. Messages to other chat users are visible when the chat is downloaded, according to a Twitter user Forbes quoted. Zoom this in its story, although it did say that if a host records a Zoom meeting locally, private chats become part of that recording. Another outlet is reporting that Zoom meetings do not support encryption end-to-end.

Both the U.S. Attorney General and the N.Y. Attorney General are investigating Zoom privacy concerns. As a result of such investigations and complaints, Zoom has reportedly removed code that sent user data to Facebook without clearly disclosing that to the user.

Zoom has said that its app did not share sensitive data, such as user names, emails, or phone numbers, but did provide information about user devices (including specifications), operating systems, and time zones.

The federal and New York investigations bear watching by attorneys. Since mid-March, when COVID-19 caused many state and federal courts to close or restrict access to courthouses and ban in-person proceedings, mediators have (commendably) continued to work at getting cases settled without in-person meetings. Most court orders encourage the use of technology to continue the progress of cases. Mediators were among the first to heed that encouragement, and the Zoom platform emerged as their consensus choice.

California mediator Jean Lawler does not believe mediators will stop using Zoom, but she does believe both mediators and the attorneys they work with must have a good understanding of the technology before using it. She notes that Zoom gives users the ability to control settings, and users must be aware of how they are set. “[A]nyone who hosts an online meeting, on any platform, would be well advised to very judiciously take a look at their settings and options to ensure settings that can protect the privacy of the participants,” said Lawler in an email.

Among the most important things, she said, is not to allow recordings of mediation sessions, not allowing chat, requiring unique identifiers and passwords from attendees, and having attendees go to a virtual waiting room so the mediator can allow them into mediation after confirming their identity.

Zoom makes similar security recommendations in a whitepaper available on its site.

Attorneys may also wish to review Zoom’s Compliance Statement with the European Union’s General Data Protection Regulation, and inquire whether the same protective steps have been taken to protect data in the United States. This is particularly true if the mediation may involve the data of EU residents, or data collected from someone while they were visiting the EU.

Another mediator told FMG that confidential information in his mediations continues to be exchanged by mail and email. None of that information is exchanged via Zoom.

As government leaders talk about flattening the contagion curve, Zoom is a reminder that attorneys, mediators, and judges are finding they must accelerate their technology learning curve.  

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include COVID-19’s impact on the construction industry, employment issues arising from the virus, the real-world impact of business restrictions, and education claims. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.** 

Coronavirus and Impact on Landlords and Tenants

Posted on: April 1st, 2020

By: Michael Bruyere,Ryan Greenspan and Ali Sabzevari

Commercial and residential tenants, whether due to operational closures or loss of jobs or income, will face difficulties meeting their rent obligations, and some may even abandon their properties.  Landlords may face both a loss of rents, as well as physical closures or abandonment of properties making sites more vulnerable to vandalism or theft. We provide this brief overview regarding how each party’s rights and obligations may be impacted by the COVID-19 crisis.

Eviction Limitations

Regulations have recently been enacted in New York, Boston, Los Angeles, San Francisco and St. Louis banning evictions for nonpayment of rent, often in both the residential and commercial settings.  Some states, such as California and New York have also instituted statewide eviction moratoriums.  Federal agencies, such as U.S. Department of Housing and Urban Development, have also announced that they are suspending evictions and foreclosures until April 30, 2020, with the CARES Act placing a 120-day eviction moratorium on tenants in special housing assistance (Section 8) or federally backed mortgage loan programs.  While these provisions prevent evictions, they do not address the tenants’ ongoing rent payment obligations.

Lease Provisions and the Impact on Rent

Unless they are on a month-to-month tenancy, the parties’ rights and obligations are evaluated under their leases.  The most likely lease provisions relating to potential efforts to avoid rent payments include: 

  • Force Majeure.  It is unclear whether COVID-19 will fall within potential force majeure clauses.  Most of these clauses have detailed listing of covered items, but pandemics are not included.  An epidemic might not also be considered an “Act of God.”  As such, the interpretation of such clauses, which might vary from state-to-state, will need careful analysis.
  • Act by Civil Authority.  Given civil shelter-in-place/business cessation orders, this type of clause may be relevant to the extent a particular business is forced to close its operations.  Not all “civil authority” clauses are written in the same way, so careful attention to the language used will be needed.

Withholding Rent/Rent Strikes

While evictions might be halted, tenant groups are seeking the additional right to not just delay rent payments, but to also negate rent obligations during the COVID-19 crisis.  Finding a legal justification for the failure to pay rent may be difficult.

For month-to-month residential renters, as long as the premises remains “habitable,” rent can almost always be compelled in the absence of an overriding statute or regulation.  Because personal homes should remain “habitable,” absent very odd circumstances, residential renters should seemingly owe their rent.  Many jurisdictions do not apply the “habitability concept” to commercial properties.   In commercial and residential lease agreements, while there may be provisions allowing for “rent holidays,” such provisions often remain “landlord friendly” as well.  Consequently, there may be few (if any) instances where a commercial tenant can also legally avoid a rent payment obligation, even if their business has been shut down (unless the force majeure or civil authority provisions apply).

Yet, threatened “rent strikes” and general intent to not pay rent, particularly in cases where evictions are not presently permitted and money may be needed for other necessities, are likely to occur.  To avoid the loss of funds, without any benefit or potential chance of later recoupment due to possible bankruptcies or lack of collection opportunities, landlords may wish to consider lease alterations.  A renegotiated lease (extended period/modified terms), or an interim lease credit, may generate opportunities to work with a tenant to find the most satisfactory outcome in an adverse economic climate.  Such an approach, with a jointly signed writing, can also avoid later issues of “waiver’ or “estoppel” in seeking to enforce lease terms.  Involving both “business” and “legal” considerations, finding a path to try and continue a positive income stream for landlords, and a workable payment plan for tenants, might be in the best interests of all concerned.

Breakdown of COVID-19 Rules on Housing Across the Nation

A breakdown of COVID-19 rules on housing across the country can be accessed here.

If you have any questions or would like more information, the National Contract and Risk Management Team at Freeman Mathis & Gary, LLP is here to help. Most circumstances are case and state-specific.  To learn more, or if you have specific questions regarding your situation, please contact A. Ali Sabzevari at [email protected], Michael P. Bruyere at [email protected], or Ryan J. Greenspan at [email protected].

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include the CARES Act, education claims, law enforcement, the real-world impact of business restrictions, and the viruses’ impact on the construction industry. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.** 

FCC Confirms COVID-19 Pandemic Constitutes Emergency Under TCPA

Posted on: March 23rd, 2020

By: Matthew Foree

The Federal Communications Commission (“FCC”) has just issued a Declaratory Ruling confirming that the coronavirus pandemic constitutes an emergency under the Telephone Consumer Protection Act (“TCPA”). The Declaratory Ruling can be found here. Consequently, “hospitals, healthcare providers, state and local health officials, and other government officials may lawfully communicate information about the novel coronavirus as well as mitigation measures without violating federal law.”

The TCPA prohibits autodialed, pre-recorded, or artificial voice calls to wireless telephone numbers, with certain exceptions. The TCPA expressly exempts calls made for emergency purposes. The FCC’s rules define “emergency purposes” to mean “calls made necessary in any situation affecting the health and safety of consumers.” The exception is intended for “instances [that] pose significant risks to public health and safety, and [where] the use of prerecorded message calls could speed the dissemination of information regarding . . . potentially hazardous conditions to the public.”

The FCC recognized that a critical component of the nation’s efforts to address and contain the pandemic is the ability of healthcare and public safety organizations to communicate effectively with the public.  Therefore, it found that the current pandemic constitutes an imminent health risk to the public.  The FCC found that in determining whether a call relating to the pandemic qualifies as a call made for an emergency purpose, it looks to (1) the identity of the caller and (2) the content of the call. Under the first prong, “the caller must be from a hospital, or be a healthcare provider, state or local health official, or other government official as well as a person under the express direction a such an organization and acting on its behalf.” Under the second prong, “the content of the call must be solely informational, made necessary because of the COVID-19 outbreak, and directly related to the imminent health or safety risk arising out of the COFIC-19 outbreak.”

The FCC gave multiple examples of calls that would fall within the emergency exception. For example, “a call originating from a hospital that provides vital and time-sensitive health and safety information that citizens welcome, expect, and rely upon to make decisions to slow the spread of the COVID-19 disease would fall squarely within an emergency purpose.” The FCC also recognized that calls that contain advertising or telemarketing of services do not constitute calls for an emergency purpose. Furthermore, calls made to collect a debt, even if it arises from related healthcare treatment, are not made for an emergency purpose. Such calls still require the prior express consent of called party.

Finally, the FCC recognized that consumers have already received telemarketing and fraudulent robocalls related to the pandemic, including scam text messages and calls offering home testing kits and promoting bogus cures. The FCC stated that it would be vigilant in monitoring complaints about these calls and would not hesitate to enforce its rules when appropriate.

If you have any questions about the FCC’s Declaratory Ruling, or any obligations under the TCPA during this time, please do not hesitate to contact Matt Foree at [email protected].

Additional information: 

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues every day for the next week. We will discuss the impact of Coronavirus for companies in general, but also for business in insurance, healthcare, California specific issues, cybersecurity, and tort. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients. Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest. As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce educational content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.** 

Business Continuity Plans in the Age of Coronavirus

Posted on: March 23rd, 2020

By: Jennifer Weatherup

As the Coronavirus, or COVID-19, has caused unprecedented disruptions, including a precipitous decline in the stock market, it is increasingly important for broker-dealers to prepare plans which will allow them to fulfill their responsibilities to customers and continue operations under difficult circumstances. More specifically, broker-dealers should ensure that their business continuity plans allow their businesses to persist in the event of a pandemic such as the Coronavirus. To this end, the Financial Industry Regulatory Authority requires its members to plan ahead in order to meet customer needs in the event of an emergency.  Specifically, FINRA mandates that all broker-dealers “ must create and maintain a written business continuity plan identifying procedures relating to an emergency or significant business disruption… reasonably designed to enable the member to meet its existing obligations to customers [and] address the member’s existing relationships with other broker-dealers and counter-parties.” (FINRA Rule 4370(a).) FINRA further requires that members update their continuity plans in the event of material changes to their operation, and conduct an annual review to identify whether the plan must be modified. (FINRA Rule 4370(b).)

In response to the Coronavirus crisis, FINRA released Regulatory Notice 20-08, “Pandemic-Related Business Continuity Planning, Guidance and Regulatory Relief” on March 9, 2020. This Notice reiterates broker-dealers’ responsibilities under Rule 4370, and recommends that members include pandemic preparedness in their business continuity plans, and evaluate whether their current plans “are sufficiently flexible to address a wide range of possible effects in the event of a pandemic in the United States [including] staff absenteeism, use of remote offices or telework arrangements, travel or transportation limitations and technology interruptions or slowdowns.”  Notably, FINRA recommends that member firms’ business continuity plans include plans to employ remote offices or telework arrangements during a pandemic. In order to ensure that the use of remote work arrangements does not undermine firms’ abilities to satisfy their other professional duties, FINRA also recommends that firms which permit remote work arrangements consider strategies for exercising sufficient supervision over employees who are working remotely, and test the extensive use of telework arrangements by employees before remote work arrangements are broadly implemented at a member firm. FINRA identified other potential issues which could arise in the event of a pandemic, and which should be addressed in a business continuity plan, including the following: increased risk of cybersecurity breaches, emergency office relocations, increased customer call volumes, and challenges in making timely regulatory filings.

As the Coronavirus pandemic has already affected operations, member firms should make it a priority to carefully review their business continuity plans to ensure that they adequately address the potential effects of the Coronavirus; without adequate plans in place, member firms may not only find themselves unable to satisfy obligations to customers, but may face regulatory scrutiny once this crisis is behind us.

Additional information: 

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues every day for the next week. We will discuss the impact of Coronavirus for companies in general, but also for business in insurance, healthcare, California specific issues, cybersecurity, and tort. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients. Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest. As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**