COVID-19 Legal and Business Considerations: Questions to Ask Now

Companies across the world are reeling from the effects of COVID-19. While many business threats have already manifested themselves, it is more important than ever to stay one step ahead to stave off business and litigation risks that lie ahead. 
 
Since the very beginning of the crisis, our clients have approached us for counsel on a wide range of novel issues. Common themes have emerged, and the volume and complexity of these questions continue to grow. Many concerns are universal, while some are influenced by industry, geography, and company size. There are many other questions still to be asked, so we will update this list on a regular basis to help you stay ahead of the curve.

Business Litigation

• How do our ethical obligation to zealously represent our clients take into account COVID-19?
• How will COVID-19 affect company valuations in business disputes?
• What is the impact of the temporary closure of a business on terms of line of credit? Does the temporary closing qualify as a default under the line of credit?

Class Action Litigation

• Are public companies at greater risk for shareholder class actions based on what public disclosures and financial statements they make in light of COVID-19?
• Will shareholder litigation uncover reporting fraud or accounting irregularities unrelated to COVID-19 that may not have been discovered in public companies until the current market disruption began? 
• What class-wide privacy implications are raised by COVID-19? 
• Are employee stock retirement plans more susceptible to ERISA class actions at this time?
• What collective or coordinated actions among competitors in response to COVID-19 create potential class liability?
• Can companies be liable when outbreaks have occurred at their sites or operations under their control?
• What statements about the COVID-19 virus that a company makes in its marketing and advertising material could lead to consumer class action liability?  
• What class liability do colleges and universities have with students for health-related issues, fees and expense reimbursements, and quality of educational services in light of COVID-19? 

Complex Litigation and Contract Disputes

• Does the COVID-19 outbreak constitute a force majeure event to excuse non-performance of commercial contracts?
• What notice requirements should be considered and acted upon in “Time is of the Essence” contracts?
• How will the COVID-19 outbreak effect commercial lease and financing transaction covenants and performance?
• What issues should be considered and acted upon now in supply contracts due to the COVID-19 outbreak? 
• How to manage risk of loss and disputes related to product shipments, delays and refusal to accept shipments due to the COVID-19 outbreak. 

Employment

• Is there anything businesses are required to do with regards to paying employees if closed due to COVID-19? 
• How do businesses manage a situation where some people can work from home and some people can't? Do businesses have to offer it all or can we offer it to some?
• Can an employee use vacation and sick days for COVID-19? If they don't have any, are employers obligated to pay them? 
• Do full time and part time/temporary employees have different rights?
• Can an employer ask an employee who exhibits symptoms of the flu or COVID-19 to leave work and seek medical attention or go home?
• What should an employer do when an employee provides notice that they may have been near someone who either has or has been exposed to COVID-19?
• Have there been emergency measures passed by the Federal government that modify the rights of employees and the obligations of employers when they furlough or terminate employees as a result of COVID 19?

General Litigation

• How will price gouging be addressed in the courts and in potential investigations by states attorneys general and the DOJ?
• How should I handle an environment in which PTO filing deadlines are not suspended, but fees to revive are being suspended?
• What are the potential liability considerations for worker-to-worker infection?
• What issues arise with respect to contractual liability of interruption of supply chains and breach of contracts?
• How should court deadlines being suspended and courts being closed to certain individuals be addressed?
• Can a party compel a deposition to be taken remotely over a video link? 

Health Care Litigation

• What are the COVID-19 implications on a clinical trial interrupted in drug development?
• What are the legal implications of HIPAA rules on hospitals being relaxed?

Insurance and Catastrophic Loss

• How can our insurance company clients address business interruption claims?
• How will insureds seek to overcome the pollution and/or contamination exclusion? 
• What directives and actions can our insurer clients expect from insurance regulators?

Intellectual Property and Technology

• How is COVID-19 relevant to royalty-free IP licensing?
• How can companies keep clinical trials going during the outbreak in light of the FDA's recent guidance? 

Mass Tort

• What legal implications are there with fast-tracking FDA approval/dissemination of COVID-related pharmaceutical drug treatments? 
• What is the potential liability for a manufacturer claiming to be effective against the COVID-19 virus but is not on the EPA’s List of Disinfectant Products?
• How will courts treat claims against manufacturers for false claims of efficacy, cures, and treatment related to COVID-19, and help prevent individuals from being harmed by misleading claims?

Medical Malpractice

• How can litigants manage statutes of limitation issues in light of COVID-19? Will courts grant orders tolling statutes of limitations?
• How will jury trials set to commence in the stayed time period be affected in terms of future start dates? 

Privacy and Cybersecurity

• How will the exigency of COVID-19 play out in determining whether a company took reasonable steps to ensure its data is secure in the event of data breaches?
• With the need for remote work in the current environment and accompanying stress on IT systems and staff, what class action risks do companies face from cyberattacks? 

Restructuring and Business Bankruptcy

• If a company is experiencing severe liquidity issues arising from the COVID-19 crisis, will the company be entitled to delay payments to creditors without penalty? 
• What steps does a company need to take if it is unable to reopen (and/or pay its creditors) after being closed by government order because of COVID-19?
• Can lenders cancel a company’s line of credit, or foreclose on property, during the COVID-19 crisis?
• Should a company file for bankruptcy protection to deal with issues created by the COVID-19 crisis or are there reasonable alternatives? 
• Will the owners of a business be personally liable for debt obligations if a business has closed because of the COVID-19 crisis?
• What are the best sources for immediate solutions to liquidity issues caused by the COVID-19 crisis?

Retail

• What are the current, nationwide laws, orders and ordinances affecting retailers?
• How are different retailers responding to COVID-19?
• Does a tenant have to pay rent due under a lease during COVID-19 epidemic?

Telecommunications Regulatory and Litigation

• Can telecom companies withstand the strain of the global effort to work from home?
• What are some of the best telecommunications services and applications to maximize productivity for those working remotely?
• Will COVID-19 interfere with the global 5G rollout?
• How is the FCC responding to an increase in fraudulent robocalls about the COVID-19 pandemic?

Wealth Planning, Administration, and Disputes

• How can I get a will or trust drafted and executed in a time of social distancing? 
• What do I do if I have concerns about my loved one being isolated and unduly influenced in a quarantined setting?
• What can we do to avoid or resolve conflict within the family given the stress and uncertainty about the health and welfare of other family members?
• How can we protect vulnerable family members from scams related to the COVID-19 pandemic?
• Is our family business ready for issues of business succession and disruption in the current environment?

Regional

California

• Are there financial liquidity solutions available to businesses in California, either through government programs or private lenders?
• How should a business prioritize uses of cash when it has insufficient liquidity?
• What is an essential business that can stay open under CA closure orders?