This course is eligible for New York and California CLE credit. Please complete and retain the applicable form for your records. The New York self-study affirmation must also be emailed to Melissa Woods ([email protected]) and Jane Gracey ([email protected]); the California form does not need to be submitted.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of New York. This transitional and non-transitional continuing legal education course has been approved in accordance with the requirements of the Continuing Legal Education Board for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied toward the areas of professional practice requirement.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of California. This continuing legal education course has been approved in accordance with the requirements of the State Bar of California for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied to the general requirement.
This course is eligible for New York and California CLE credit. Please complete and retain the applicable form for your records. The New York self-study affirmation must also be emailed to Melissa Woods ([email protected]) and Jane Gracey ([email protected]); the California form does not need to be submitted.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of New York. This transitional and non-transitional continuing legal education course has been approved in accordance with the requirements of the Continuing Legal Education Board for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied toward the areas of professional practice requirement.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of California. This continuing legal education course has been approved in accordance with the requirements of the State Bar of California for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied to the general requirement.
This course is eligible for New York and California CLE credit. Please complete and retain the applicable form for your records. The New York self-study affirmation must also be emailed to Melissa Woods ([email protected]) and Jane Gracey ([email protected]); the California form does not need to be submitted.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of New York. This transitional and non-transitional continuing legal education course has been approved in accordance with the requirements of the Continuing Legal Education Board for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied toward the areas of professional practice requirement.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of California. This continuing legal education course has been approved in accordance with the requirements of the State Bar of California for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied to the general requirement.
This course is eligible for New York and California CLE credit. Please complete and retain the applicable form for your records. The New York self-study affirmation must also be emailed to Melissa Woods ([email protected]) and Jane Gracey ([email protected]); the California form does not need to be submitted.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of New York. This transitional and non-transitional continuing legal education course has been approved in accordance with the requirements of the Continuing Legal Education Board for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied toward the areas of professional practice requirement.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of California. This continuing legal education course has been approved in accordance with the requirements of the State Bar of California for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied to the general requirement.
Primary State Orders:
You can find all state-level orders for Wyoming here.
For a list of all state-level orders across the US, including Wyoming, click here.
Last updated 6/30/2021
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Last updated 6/30/2021
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You can find all state-level orders for Oklahoma here.
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You can find all state-level orders for Ohio here.
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You can find all state-level orders for North Dakota here.
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You can find all state-level orders for North Carolina here.
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You can find all state-level orders for New York here.
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You can find all state-level orders for Maryland here.
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Last updated 6/30/2021
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Last updated 6/30/2021
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Last updated 6/30/2021
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Illinois is regularly issuing region-specific supplements to the Community Revitalization Order. See the full list of orders here.
You can find all state-level orders for Illinois here.
For a list of all state-level orders across the US, including Illinois, click here.
Last updated 6/30/2021
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Last updated 6/30/2021
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Last updated 6/30/2021
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Last updated 6/30/2021
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Last updated 6/30/2021
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You can find all orders for the District of Columbia here.
For a list of all state-level orders across the US, including District of Columbia, click here.
Last updated 6/30/2021
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You can find all state-level orders for Delaware here.
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Last updated 6/30/2021
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Last updated 6/30/2021
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You can find all state-level orders for Colorado here.
For a list of all state-level orders across the US, including Colorado, click here.
Last updated 6/30/2021
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You can find all state-level orders for California here.
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Last updated 6/30/2021
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You can find the full set of state orders for Arkansas here.
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Last updated 6/30/2021
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You can find all state-level orders for Alaska here.
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You can find all state-level orders for Alabama here.
For a list of all state-level orders across the US, including Alabama, click here.
Last updated 6/30/2021
This course is eligible for New York and California CLE credit. Please complete and retain the applicable form for your records. The New York self-study affirmation must also be emailed to Melissa Woods ([email protected]) and Jane Gracey ([email protected]); the California form does not need to be submitted.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of New York. This transitional and non-transitional continuing legal education course has been approved in accordance with the requirements of the Continuing Legal Education Board for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied toward the areas of professional practice requirement.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of California. This continuing legal education course has been approved in accordance with the requirements of the State Bar of California for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied to the general requirement.
This course is eligible for New York and California CLE credit. Please complete and retain the applicable form for your records. The New York self-study affirmation must also be emailed to Melissa Woods ([email protected]) and Jane Gracey ([email protected]); the California form does not need to be submitted.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of New York. This transitional and non-transitional continuing legal education course has been approved in accordance with the requirements of the Continuing Legal Education Board for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied toward the areas of professional practice requirement.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of California. This continuing legal education course has been approved in accordance with the requirements of the State Bar of California for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied to the general requirement.
This course is eligible for New York and California CLE credit. Please complete and retain the applicable form for your records. The New York self-study affirmation must also be emailed to Melissa Woods ([email protected]) and Jane Gracey ([email protected]); the California form does not need to be submitted.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of New York. This transitional and non-transitional continuing legal education course has been approved in accordance with the requirements of the Continuing Legal Education Board for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied toward the areas of professional practice requirement.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of California. This continuing legal education course has been approved in accordance with the requirements of the State Bar of California for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied to the general requirement.
This course is eligible for New York and California CLE credit. Please complete and retain the applicable form for your records. The New York self-study affirmation must also be emailed to Melissa Woods ([email protected]) and Jane Gracey ([email protected]); the California form does not need to be submitted.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of New York. This transitional and non-transitional continuing legal education course has been approved in accordance with the requirements of the Continuing Legal Education Board for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied toward the areas of professional practice requirement.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of California. This continuing legal education course has been approved in accordance with the requirements of the State Bar of California for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied to the general requirement.
This course is eligible for New York and California CLE credit. Please complete and retain the applicable form for your records. The New York self-study affirmation must also be emailed to Melissa Woods ([email protected]) and Jane Gracey ([email protected]); the California form does not need to be submitted.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of New York. This transitional and non-transitional continuing legal education course has been approved in accordance with the requirements of the Continuing Legal Education Board for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied toward the areas of professional practice requirement.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of California. This continuing legal education course has been approved in accordance with the requirements of the State Bar of California for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied to the general requirement.
This course is eligible for New York and California CLE credit. Please complete and retain the applicable form for your records. The New York self-study affirmation must also be emailed to Melissa Woods ([email protected]) and Jane Gracey (jgr[email protected]); the California form does not need to be submitted.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of New York. This transitional and non-transitional continuing legal education course has been approved in accordance with the requirements of the Continuing Legal Education Board for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied toward the areas of professional practice requirement.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of California. This continuing legal education course has been approved in accordance with the requirements of the State Bar of California for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied to the general requirement.
This course is eligible for New York and California CLE credit. Please complete and retain the applicable form for your records. The New York self-study affirmation must also be emailed to Melissa Woods ([email protected]) and Jane Gracey ([email protected]); the California form does not need to be submitted.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of New York. This transitional and non-transitional continuing legal education course has been approved in accordance with the requirements of the Continuing Legal Education Board for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied toward the areas of professional practice requirement.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of California. This continuing legal education course has been approved in accordance with the requirements of the State Bar of California for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied to the general requirement.
This course is eligible for New York and California CLE credit. Please complete and retain the applicable form for your records. The New York self-study affirmation must also be emailed to Melissa Woods ([email protected]) and Jane Gracey ([email protected]); the California form does not need to be submitted.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of New York. This transitional and non-transitional continuing legal education course has been approved in accordance with the requirements of the Continuing Legal Education Board for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied toward the areas of professional practice requirement.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of California. This continuing legal education course has been approved in accordance with the requirements of the State Bar of California for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied to the general requirement.
This course is eligible for New York and California CLE credit. Please complete and retain the applicable form for your records. The New York self-study affirmation must also be emailed to Melissa Woods ([email protected]) and Jane Gracey ([email protected]); the California form does not need to be submitted.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of New York. This transitional and non-transitional continuing legal education course has been approved in accordance with the requirements of the Continuing Legal Education Board for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied toward the areas of professional practice requirement.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of California. This continuing legal education course has been approved in accordance with the requirements of the State Bar of California for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied to the general requirement.
This course is eligible for New York and California CLE credit. Please complete and retain the applicable form for your records. The New York self-study affirmation must also be emailed to Melissa Woods ([email protected]) and Jane Gracey ([email protected]). The California self-study form does not need to be emailed to Melissa Woods and Jane Gracey.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of New York. This transitional and non-transitional continuing legal education course has been approved in accordance with the requirements of the Continuing Legal Education Board for a maximum of 1.5 credit hours, of which 1.5 credit hours can be applied toward the areas of professional practice requirement.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of California. This continuing legal education course has been approved in accordance with the requirements of the State Bar of California for a maximum of 1.5 credit hours, of which 1.5 credit hours can be applied to the general requirement.
This course is eligible for New York and California CLE credit. Please complete and retain the applicable form for your records. The New York self-study affirmation must also be emailed to Melissa Woods ([email protected]) and Jane Gracey ([email protected]). The California self-study form does not need to be emailed to Melissa Woods and Jane Gracey.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of New York. This transitional and non-transitional continuing legal education course has been approved in accordance with the requirements of the Continuing Legal Education Board for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied toward the areas of professional practice requirement.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of California. This continuing legal education course has been approved in accordance with the requirements of the State Bar of California for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied to the general requirement.
This course is eligible for New York and California CLE credit. Please complete and retain the applicable form for your records. The New York self-study affirmation must also be emailed to Melissa Woods ([email protected]) and Jane Gracey ([email protected]). The California self-study form does not need to be emailed to Melissa Woods and Jane Gracey.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of New York. This transitional and non-transitional continuing legal education course has been approved in accordance with the requirements of the Continuing Legal Education Board for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied toward the areas of professional practice requirement.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of California. This continuing legal education course has been approved in accordance with the requirements of the State Bar of California for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied to the general requirement.
This course is eligible for New York and California CLE credit. Please complete and retain the applicable form for your records. The New York self-study affirmation must also be emailed to Melissa Woods ([email protected]) and Jane Gracey ([email protected]). The California self-study form does not need to be emailed to Melissa Woods and Jane Gracey.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of New York. This transitional and non-transitional continuing legal education course has been approved in accordance with the requirements of the Continuing Legal Education Board for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied toward the areas of professional practice requirement.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of California. This continuing legal education course has been approved in accordance with the requirements of the State Bar of California for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied to the general requirement.
Primary State Orders:
You can find all territory-level orders for Puerto Rico here.
For a list of all state- and county/city-level orders across the US, including Puerto Rico, click here.
This course is eligible for New York and California CLE credit. Please complete and retain the applicable form for your records. The New York self-study affirmation must also be emailed to Melissa Woods ([email protected]) and Jane Gracey ([email protected]). The California self-study form does not need to be emailed to Melissa Woods and Jane Gracey.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of New York. This transitional and non-transitional continuing legal education course has been approved in accordance with the requirements of the Continuing Legal Education Board for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied toward the areas of professional practice requirement.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of California. This continuing legal education course has been approved in accordance with the requirements of the State Bar of California for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied to the general requirement.
This course is eligible for New York and California CLE credit. Please complete and retain the applicable form for your records. The New York self-study affirmation must also be emailed to Melissa Woods ([email protected]) and Jane Gracey ([email protected]). The California self-study form does not need to be emailed to Melissa Woods and Jane Gracey.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of New York. This transitional and non-transitional continuing legal education course has been approved in accordance with the requirements of the Continuing Legal Education Board for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied toward the areas of professional practice requirement.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of California. This continuing legal education course has been approved in accordance with the requirements of the State Bar of California for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied to the general requirement.
This course is eligible for New York and California CLE credit. Please complete and retain the applicable form for your records. The New York self-study affirmation must also be emailed to Melissa Woods ([email protected]) and Jane Gracey ([email protected]). The California self-study form does not need to be emailed to Melissa Woods and Jane Gracey.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of New York. This transitional and non-transitional continuing legal education course has been approved in accordance with the requirements of the Continuing Legal Education Board for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied toward the areas of professional practice requirement.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of California. This continuing legal education course has been approved in accordance with the requirements of the State Bar of California for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied to the general requirement.
Updated as of April 21, 2020:
If you have closed your business either because of contamination of your premises with COVID-19 or due to a shelter-in-place or non-essential business order by a governmental authority, then the business interruption coverage in your first-party property policy may apply. Such business interruption coverage covers lost net income during a period of suspended operations due to a covered peril like “physical loss or damage” to tangible property.
Insurers have started summarily denying business interruption claims on the basis that COVID-19 contamination does not constitute physical loss or damage to property because they argue that (among other things) a contaminated surface can be sanitized. But lack of coverage is not the foregone conclusion that insurers would like you to believe. Instead, if anyone who has contracted COVID-19 has entered your premises, or your business has received a package that had the virus on it, surfaces or spaces, including HVAC or elevators, may be contaminated. Coverage has been established in the past without requiring damage to structures to satisfy the physical loss or damage element—for example, damage caused by smoke or Legionaries’ Disease in HVAC systems. Whether COVID-19 contamination constitutes physical damage is likely to be a hotly contested issue with property insurers and may change depending on the more we learn about the virus.
Civil authority coverage may also apply. This coverage applies when access to your business is prohibited by local order, typically due to a covered loss in the vicinity of your business. So even if you have been fortunate to not have contamination in your building, your business may have been shut down by the local authorities because of such contamination in your area. Indeed, some jurisdictions have asserted in their shelter-in-place orders that COVID-19 contamination causes physical damage.
And if you are in a specialized industry, like hospitality, you may have specific coverage available, like communicable disease coverage.
In addition to arguing that COVID-19 does not constitute physical loss or damage to trigger coverage, insurers likely also will cite the pollution exclusion in most policies, and virus or disease exclusions that appear on some policies. A close review of these exclusions is required, as most pollution exclusions discuss bacteria, and do not refer to viruses.
If your policy period is about to expire, you should seriously consider providing notice of a claim to preserve your rights. Policies may have bacteria and virus exclusions, so you should analyze your coverage carefully.
Updated as of April 21, 2020:
Contingent business interruption coverage is included in most commercial property policies and covers lost income due to a covered peril affecting a key supplier, so like business interruption coverage, coverage likely will depend on whether COVID-19 contamination constitutes physical loss or damage (which insurers are disputing). Some policies also provide that contingent business interruption coverage is available when a supplier’s business is shut down due to a covered civil authority order. The policy may require that a supplier be specifically identified by endorsement in your policy. Contingent business interruption coverage also is subject to certain exclusions, and the insurer may argue that the pollution exclusion or a more specific virus exclusion applies. Like all coverages, a close review of your specific policy language is necessary to assess potential coverage.
This course is eligible for New York and California CLE credit. Please complete and retain the applicable form for your records. The New York self-study affirmation must also be emailed to Melissa Woods ([email protected]) and Jane Gracey ([email protected]). The California self-study form does not need to be emailed to Melissa Woods and Jane Gracey.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of New York. This transitional and non-transitional continuing legal education course has been approved in accordance with the requirements of the Continuing Legal Education Board for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied toward the areas of professional practice requirement.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of California. This continuing legal education course has been approved in accordance with the requirements of the State Bar of California for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied to the general requirement.
Updated as of March 8, 2020:
Updated as of March 6, 2020:
The worldwide spread of COVID-19 highlights differences between legal systems and cultures. Despite variances, employers have a universal duty to ensure the health and safety of the workforce – not to mention a general duty and desire to avoid harming customers while conducting business. Companies need to stay true to their ultimate goal of keeping people safe and adjust their tactics to keep pace with quickly changing local rules. The following provides some general guidance:
Updated as of March 31, 2020:
The COVID-19 pandemic is creating financial distress across almost every industry and is affecting suppliers and customers alike. The first step is to recognize when your contract counterparty is in financial distress. When a company’s financial conditions are strained, there are usually early warning signs.
What are the early warning signs?
Other Warning Signs of Distress
What to Do if your Supplier is Financially Distressed
If you suspect your supplier is under financial stress, consider:
Other options:
If the supplier does not deliver the goods:
What to Do if your Customer is Financially Distressed
If the supplier suspects the customer is financially distressed, the supplier should consider the following:
If the goods are already in transit, you may consider stopping the delivery if the customer is insolvent. The supplier has the right to stop the goods if the customer is insolvent and has not taken physical possession, so the carrier is obligated to return them. But to do so, you must inform the carrier to return the goods by a prescribed method and pay for any additional expenses. If the customer has pledged the goods to a creditor, then the supplier’s rights to the goods may be subordinate to the secured creditor’s interest in the goods. If the goods have been delivered but remain unpaid, you may sue to recover the contract price.
During this crisis, many suppliers and customers likely will be looking for financial accommodations in the coming months. Best strategies will include reaching agreements with your counter-parties, seeking temporary price relief (increase/decrease), payment deferments or debt moratoriums, production relief (timing, amount, sharing of cost), adjustment of payment terms, and other accommodations to provide temporary liquidity relief.
Updated as of March 6, 2020:
On March 4, 2020, the SEC announced conditional regulatory relief to public companies impacted by the COVID-19 granting them extra 45 days to file Annual Reports on Forms 10-K or Form 20-F and Quarterly Reports on Form 10-Q due between March 1 and April 30, 2020.
As a condition to taking advantage of the filing extension, affected companies must make a filing on Form 8-K or 6-K explaining, among other things, (1) why the extra time is needed, (2) when the company expects to file the forms, and (3) if needed, a risk factor explaining the impact of the coronavirus on the company’s business. The explanatory filing must be made by March 16 or the original filing date of the affected report, whichever date is later.
The SEC order also exempts companies from the obligation to deliver required proxy statements, annual reports and other soliciting materials to security holders if (1) the security holder has a mailing address in an area where, as a result of coronavirus, the customary delivery service used by the company has been suspended, and (2) the company or other person making a solicitation has made a good-faith effort to furnish materials to the security holder.
As of April 14, 2020:
The Supreme Court postponed oral arguments scheduled for this month’s session, citing precedent from the 1918 Spanish flu epidemic as well as 18th century yellow fever outbreaks.
The Court has also extended the time period for filing a cert petition to 150 days, and given the Clerk’s office authority to consider reasonable COVID-19-related extension requests and motions to delay distribution of a petition for writ of certiorari where the grounds for the motion are that the petitioner needs additional time to file a reply due to difficulties relating to COVID-19.
The Court will postpone the oral arguments currently scheduled for the April session (April 20-22 and April 27-29). The Court will hear oral arguments by telephone conference on May 4, 5, 6, 11, 12 and 13 in a limited number of previously postponed cases. The following cases will be assigned argument dates after the Clerk’s Office has confirmed the availability of counsel:
18-9526, McGirt v. Oklahoma
19-46, United States Patent and Trademark Office v. Booking.com B.V.
19-177, Agency for International Development v. Alliance for Open Society International, Inc.
19-267, Our Lady of Guadalupe School v. Morrissey-Berru, and 19-348, St. James School v. Biel
19-431, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, and 19-454, Trump v. Pennsylvania
19-465, Chiafalo v. Washington
19-518, Colorado Department of State v. Baca
19-631, Barr v. American Association of Political Consultants, Inc.
19-635, Trump v. Vance
19-715, Trump v. Mazars USA, LLP, and 19-760, Trump v. Deutsche Bank AG
The Court will continue to proceed with the resolution of all cases argued this Term. The Court is continuing to hold its regularly scheduled conferences and issuing Order Lists.
As of April 14, 2020:
Federal Circuit: The Court’s administrative orders regarding COVID-19 do not “alter or extend any deadlines in any case.” Certain cases scheduled for the April 2020 sitting were removed from the argument calendar and submitted on the briefs. Cases still on the calendar were conducted telephonically with live public audio access provided via the court’s website. As of Monday, March 23, 2020, the Clerk’s Office will be reducing telephone assistance; instead, email [email protected] for questions about pending cases. The court has also advised that “travel restrictions due to COVID-10 are an insufficient basis for a scheduling conflict due to the availability of telephonic conferences for oral argument.”
http://www.cafc.uscourts.gov/announcements
D.C. Circuit: The D.C. Circuit has suspended all in-person on site oral arguments. Each panel scheduled to hear argument on a particular day will determine for each scheduled case whether: (1) Argument in the scheduled case or cases will proceed by teleconference; (2) Argument in the scheduled case or cases will be postponed until a later date; (3) The scheduled case or cases will be decided without oral argument. All other deadlines remain as scheduled.
First Circuit: The deadline for any non-emergency filing due to be filed between March 26, 2020 and April 24, 2020 that (1) is not presently calendared for oral argument, (2) has not been argued before a panel, or (3) is otherwise not expedited, is automatically extended for 30 additional days, as long as the deadline is one within the court’s power to extend. The court will re-evaluate in mid-April 2020 whether the continued automatic extension of filing deadlines is necessary. Due dates for notices of appeal, petitions for review, and any document that confers jurisdiction on the court are set by statute or rule and are unaffected by this notice.
Second Circuit: All filing dates and other deadlines set out in the Federal Rules of Appellate Procedure, the Court’s Local Rules and the Court’s orders are extended or tolled by 21 days, effective through May 17, 2020. The due date for a notice of appeal, petition for review or other document that confers jurisdiction on the Court is not affected.
The regular argued appeals and motions calendars will be heard as scheduled. Effective Monday, March 23, 2020, and until the COVID-19 crisis passes, the Court will hear all oral arguments using a teleconference platform. All lawyers and pro se litigants who are scheduled to argue must do so by teleconference. The Clerk’s Office will forward teleconference instructions to the lawyers and pro se litigants appearing each argument day. In the alternative, parties may request to submit the appeal for determination. All oral arguments will be audio livestreamed.
Third Circuit: The court has relaxed non-jurisdictional deadlines by three days. Oral arguments will continue as scheduled pending further order of the Court. The merits panel will determine the manner of argument. Parties may file a motion requesting to appear by audio conference. Parties may request extensions of time either by motion or by calling the Clerk’s office at 215-597-2995 and selecting the case management team. The clerk’s office is accepting original proceedings and case filings from non-electronic filers by email to [email protected].
https://www.ca3.uscourts.gov/sites/ca3/files/COVID%20Notice.pdf
Fourth Circuit: Cases previously scheduled for argument during the March 17-20, 2020, April 7, 2020, and May 5-8, 2020, argument sessions will be heard at a later session, heard by teleconference or videoconference, or submitted on the briefs, at the direction of the assigned panels. All other deadlines remain as scheduled. The court has suspended its oral argument requirement for published opinions in cases scheduled for oral argument during the court’s March 17-20, April 7, and May 5-8, 2020, sessions.
http://www.ca4.uscourts.gov/docs/pdfs/noticestandingorder20-01.pdf?sfvrsn=8
http://www.ca4.uscourts.gov/docs/pdfs/publicadvisorycovidoperatingprocedures.pdf?sfvrsn=4
Fifth Circuit: The Court has cancelled in-person oral arguments scheduled for March 30-April 2, 2020, and April 27-30, 2020. When the Court determines how to proceed in these cases, the Clerk’s Office will advise counsel. All other deadlines remain as scheduled.
Sixth Circuit: In-person oral arguments have been cancelled for the weeks of April 27 and May 4, 2020. Counsel have been informed and the court will reschedule some arguments to be heard remotely. All remote arguments will be recorded and posted to the Court’s website on the same day the arguments are held. All other deadlines remain as scheduled.
https://www.ca6.uscourts.gov/sites/ca6/files/COVID%20Notice.pdf
Seventh Circuit: All cases scheduled for oral argument from March 30, 2020 through the end of April 2020, will be argued telephonically by counsel. If all parties agree among themselves to waive oral argument, they may jointly file a motion with the court seeking permission to do so. All FRAP Rule 33 mediations will be conducted by telephone until further notice. All other deadlines remain as scheduled.
Eighth Circuit: The Eighth Circuit has restricted access to the courthouse and has suspended paper copy requirements, but court operations are otherwise unchanged. All deadlines remain as scheduled. The Court has determined that the April 2020 Calendar will consist of cases to be submitted without oral argument and cases to be argued through teleconference. Whether your case is designated as a no-argument case or a teleconference case, you should not appear in St. Louis.
https://ecf.ca8.uscourts.gov/files/coronavirusweb.pdf
Ninth Circuit: The Court will extend non-jurisdictional filing dates as needed; parties may request an automatic 60-day extension of any briefing deadline by following the procedure outlined here. Due dates for notices of appeal, petitions for review, and any document that confers jurisdiction on this Court, are set by statute or rule and are unaffected by this notice. The Court will issue instructions for seeking extensions of other types of non-jurisdictional deadlines in the coming days.
Arguments currently scheduled in March, April, and May 2020 are being evaluated one at a time and orders will issue in those cases giving direction to the parties. Panels may exercise their discretion under the rules to submit cases without argument; to postpone argument to a later date; or to hold argument via telephone or video. When argument is held, it will be live streamed to facilitate public access.
Tenth Circuit: The Tenth Circuit has closed its courthouse to the public, and suspended paper copy requirements. All other deadlines remain as scheduled. The Tenth Circuit is actively working to assess all cases set for argument in April and May. Those cases will be argued telephonically, submitted on the briefs, or reset for in-person argument at a later date. Counsel will be notified of the court’s determinations in the coming weeks, well before scheduled argument.
https://www.ca10.uscourts.gov/clerk/news/operational-response-covid-19-pandemic
https://www.ca10.uscourts.gov/clerk/news/restrictions-entering-byron-white-united-states-courthouse
Eleventh Circuit: The Eleventh Circuit has authorized any or all oral arguments to be heard by audio or teleconference instead of in person. All other deadlines remain as scheduled.
http://www.ca11.uscourts.gov/sites/default/files/courtdocs/clk/GeneralOrder44.pdf
As of April 14, 2020:
California
C.D. Cal: All jury trials scheduled to begin before June 1, 2020 are continued. In civil cases, no hearings will go forward except for emergency time-sensitive matters, which will proceed telephonically only. In criminal cases, criminal duty matters will go forward in the Edward R. Roybal Federal Building and United States Courthouse in Los Angeles only. Telephonic hearings on other criminal matters may proceed as directed by the assigned judicial officer. As of March 29, 2020, the court authorized the use of video conferencing, or telephonic conferencing if video conferencing is not reasonably available, for criminal proceedings listed in Section 15002(b) of the CARES Act, including detention hearings, initial appearances, and preliminary hearings. Effective March 31, 2020, all regularly scheduled grand jury proceedings are suspended and continued to May 4, 2020, pending further order of the court. All filing deadlines will remain in place unless otherwise ordered by the presiding Judge.
https://www.cacd.uscourts.gov/news/covid-19-notice
E.D. Cal: All jury trials scheduled to begin before May 1, 2020 are continued. All courtroom proceedings and filing deadlines in a case will remain in place unless otherwise ordered by the Judge presiding over that case. All of the court’s civil matters will be decided on the papers, or if the assigned Judge believes a hearing is necessary, the hearing will be by telephone or videoconference. This applies to all matters including motion hearings, case management conferences, pretrial conferences, and settlement conferences.
As of March 30, 2020, the court authorized the use of videoconferencing, or telephone conferencing if videoconference is not reasonably available, for criminal proceedings listed in Section 15002(b) of the CARES Act, including detention hearings, initial appearances, and preliminary hearings.
http://www.caed.uscourts.gov/caednew/
N.D. Cal: All jury trials scheduled to begin before May 1, 2020 are continued. All civil matters will be decided on the papers, or if the assigned judge believes a hearing is necessary, the hearing will be by telephone or videoconference. All civil hearings and most criminal hearings will be conducted either by teleconference or videoconference until at least May 1, 2020. This period may be extended by further order.
Criminal proceedings before magistrate judges will continue but will be consolidated, and will be conducted by telephone or videoconference to the extent possible. As of March 30, 2020, the court authorized the use of videoconferencing, or telephone conferencing if videoconference is not reasonably available, for criminal proceedings listed in the CARES Act, including detention hearings, initial appearances, and preliminary hearings.
All grand jury proceedings are suspended until May 1, 2020.
Effective March 26, 2020, the Oakland, San Jose, and Eureka/McKinleyville Courthouses will be closed entirely to the public, and essential courthouse operations will be consolidated and relocated to the San Francisco Courthouse, until May 1, 2020.
https://cand.uscourts.gov/notices/information-regarding-covid-19/
S.D. Cal: All jury trials, trial-specific deadlines, grand jury proceedings, and criminal proceedings are continued until April 16, 2020. Personal appearances in civil cases are excused unless ordered. As of March 30, 2020, the court authorized the use of videoconferencing, or telephone conferencing if videoconference is not reasonably available, for criminal proceedings listed in Section 15002(b) of the CARES Act.
https://www.casd.uscourts.gov/covid19.aspx
Delaware
D. Del.: All jury trials scheduled to begin before April 30, 2020 are continued. All currently scheduled change of please, sentencings, and supervised release violations are likewise continued until April 30. Individual judges retain the discretion to schedule and hold hearings and bench trials, but are encouraged to do so by telephone or videoconference where practical. All other non-hearing deadlines remain in effect.
As of April 1, 2020, the court authorized the use of videoconferencing, or telephone conferencing if videoconference is not reasonably available, for criminal proceedings listed in Section 15002(b) of the CARES Act, including detention hearings, initial appearances, and preliminary hearings.
No new grand juries will be empaneled prior to April 30, and all grand jury sessions are suspended through April 30, 2020.
District of Columbia
D.D.C.: All jury trials scheduled to begin before June 11, 2020, and grand jury sessions and empanelments scheduled before that date, are postponed and continued pending further order of the court. All other civil, criminal and bankruptcy proceedings scheduled to occur before June 1, 2020, are postponed and will be scheduled for a later date, unless the presiding judge in an individual case issues an order after April 2, 2020, directing that a particular proceeding will be held by teleconference or videoconference on or before June 1, 2020.
The criminal duty Magistrate Judge will continue to conduct proceedings, including initial appearances in this Court following arrest and detention hearings, as necessary, utilizing videoconference capabilities for detained defendants when feasible.
As of March 29, 2020, the court authorized the use of video conferencing, or telephonic conferencing if video conferencing is not reasonably available, for criminal proceedings listed in Section 15002(b) of the CARES Act, including detention hearings, initial appearances, and preliminary hearings.
The 30-day time period for filing an indictment is tolled for the time period from March 17, 2020, through June 11, 2020.
Video or audio access to judicial proceedings in civil, criminal, and miscellaneous matters will be provided to the public and the media, with the consent of the presiding judge, when the proceeding is conducted using video and/or audio teleconferencing, notwithstanding the general ban on broadcasting of proceedings in federal district court.
https://www.dcd.uscourts.gov/sites/dcd/files/Court%20Operations%20Standing%20Order%2020-9.pdf
Massachusetts
D. Mass.: All jury trials scheduled to begin before May 29, 2020, are continued. Individual judges may continue to hold hearings, conferences, and bench trials in the exercise of their discretion, by telephone or video conferencing where practicable. All regularly scheduled grand jury proceedings are continued to May 29, 2020. The U.S. Attorney may schedule grand jury proceedings for emergency or essential matters.
Specific information regarding criminal proceedings: The court will continue to hold criminal proceedings where personal liberty and/or public safety issues are immediately implicated. All other criminal proceedings, subject to certain exceptions as set forth below, will be continued for 60 days.
As of March 30, 2020, the court authorized the use of videoconferencing, or telephone conferencing if videoconference is not reasonably available, for criminal proceedings listed in the CARES Act, including detention hearings, initial appearances, and preliminary hearings.
All existing pretrial deadlines; hearings on criminal motions; proceedings on possible revocation of probation or supervised release; proceedings to change a plea; and sentencing hearings are extended 60 days, unless otherwise directed by the presiding judicial officer.
Access to teleconference and videoconference hearings will be made available to the public via teleconference through an automated sign-up tool.
New York
E.D.N.Y.: All jury trials scheduled to begin before April 27, 2020, are continued. Compliance with all trialspecific deadlines in civil and criminal cases scheduled to begin before April 27, 2020, is at the discretion of the assigned judge. Jury trials that began prior to March 16, 2020, shall proceed as scheduled.
Individual judges may continue to hold hearings, conferences, and bench trials in the exercise of their discretion, by telephone or video conferencing where practicable, and/or adjourn matters or deadlines, or stay litigation, where in-person meetings, interviews, depositions, or travel would be necessary to prepare for any such proceedings.
As of March 30, 2020, the court authorized the use of videoconferencing, or telephone conferencing if videoconference is not reasonably available, for criminal proceedings listed in the CARES Act, including detention hearings, initial appearances, and preliminary hearings. The time for a Magistrate Judge to conduct a preliminary hearing is extended to 60 days after the initial appearance.
https://www.nyed.uscourts.gov/
N.D.N.Y.: All jury trials scheduled to begin before April 30, 2020, are continued. Case-by-case exceptions to the postponements may be ordered at the discretion of the Court after consultation with counsel.
As of April 3, 2020, the court authorized the use of video conferencing, or telephonic conferencing if video conferencing is not reasonably available, for criminal proceedings listed in Section 15002(b) of the CARES Act, including detention hearings, initial appearances, and preliminary hearings.
https://www.nynd.uscourts.gov/public-emergency
S.D.N.Y.: All jury trials are suspended until June 1, 2020. Compliance with all trial-specific deadlines in civil and criminal cases scheduled to begin before April 27, 2020, is at the discretion of the presiding judge. Jury trials that began prior to March 16, 2020 shall proceed as scheduled.
Existing grand juries will continue in operation.
Civil Case Operations will proceed at the discretion of the individual Judge. In-court appearances will be limited strictly to Emergency Matters, and even these should be conducted by teleconference or (if the presence of witnesses is required) videoconference if possible. Criminal Case Operations will proceed at the Daniel Patrick Moynihan (DPM) Courthouse in Foley Square and the Charles L. Brieant (WP) Courthouse in White Plains, limited to the processing of New Arrests, Arraignments, Bail Appeals, and Emergency Matters. As of March 30, 2020, the court authorized the use of videoconferencing, or telephone conferencing if videoconference is not reasonably available, for criminal proceedings listed in the CARES Act, including detention hearings, initial appearances, and preliminary hearings.
https://nysd.uscourts.gov/covid-19-coronavirus
W.D.N.Y.: All civil jury trials are continued for a period of 60 days.
All grand jury selections are continued for a period of 60 days.
A judge may adjourn criminal proceedings for a period of 60 days. As of March 30, 2020, the court authorized the use of videoconferencing, or telephone conferencing if videoconference is not reasonably available, for criminal proceedings listed in Section 15002(b) of the CARES Act, including detention hearings, initial appearances, and preliminary hearings.
https://www.nywd.uscourts.gov/
Oregon
D. Or.: All jury trials and grand jury proceedings scheduled to begin before June 1, 2020 are continued.
Unless otherwise ordered by the Presiding Judge, all other civil and criminal matters scheduled for an in-Court appearance before June 1, 2020, including any associated deadlines, are continued, unless all parties and the Presiding Judge agree to resolve the matters without oral argument, or via telephone or video teleconferencing where practical.
Case-by-case exceptions to the continuances provided herein may be ordered for non-jury matters by the Presiding Judge after consultation with counsel.
As of March 30, 2020, the court authorized the use of videoconferencing, or telephone conferencing if videoconference is not reasonably available, for criminal proceedings listed in Section 15002 of the CARES Act.
Texas
E.D. Tex.: All jury trials scheduled to begin before May 1, 2020, are continued. Those continuances do not continue any pending deadlines other than the trial dates.
Grand jury proceedings through May 1, 2020, are continued. All related deadlines are suspended and tolled for all purposes, including the statute of limitations through May 1, 2020.
Individual judges retain discretion to hold other in-court proceedings; counsel may request that such proceedings be conducted via telephone or videoconference, but the Court is not bound by party or counsel policies regarding travel restrictions.
As of March 30, 2020, the court authorized the use of videoconferencing, or telephone conferencing if videoconference is not reasonably available, for criminal proceedings listed in the CARES Act, including detention hearings, initial appearances, and preliminary hearings.
http://www.txed.uscourts.gov/sites/default/files/goFiles/GO%2020-03%20%20COVID-19_signed.pdf
N.D. Tex.: All bench and jury trials scheduled to begin before May 1, 2020, are continued. Those continuances do not continue any pending deadlines other than the trial dates.
All grand jury proceedings through May 1, 2020, are continued. All deadlines are suspended and tolled for all purposes, including the statute of limitations, from today through May 1, 2020.
As of March 30, 2020, the court authorized the use of videoconferencing, or telephone conferencing if videoconference is not reasonably available, for criminal proceedings listed in the CARES Act, including detention hearings, initial appearances, and preliminary hearings.
All hearings for the P.A.S.S. Re-entry Court, scheduled between now and May 1, 2020 are cancelled.
http://www.txnd.uscourts.gov/sites/default/files/documents/COVID19.pdf
S.D. Tex.: To the extent they can, courts will minimize the need to require their employees, the lawyers, or the litigants from deviating from the shelter-in-place orders. Those steps will likely include deferring any nonessential in-court appearances or having them occur by telephone conference, Skype, or similar technology.
All jury trials are suspended in the Houston and Galveston Divisions through May 1, 2020. Other Deadlines and settings remain in place pending further order by each judge in specific cases or by standing order.
The bankruptcy judges have agreed to conduct most hearings by telephone or video conference, rather than bring attorneys or their clients into the courthouses.
As of March 30, 2020, the court authorized the use of videoconferencing, or telephone conferencing if videoconference is not reasonably available, for criminal proceedings listed in Section 15002(b) of the CARES Act, including detention hearings, initial appearances, and preliminary hearings.
W.D. Tex.: All hearings through May 1, 2020, are continued. Those continuances do not continue any pending deadlines other than the trial dates.
All grand jury proceedings through May 1, 2020 are continued. All deadlines are suspended and tolled for all purposes, including the statute of limitations, through May 1, 2020. The U.S. Attorney may schedule grand jury for emergency or essential matters.
As of March 30, 2020, the court authorized the use of videoconferencing, or telephone conferencing if videoconference is not reasonably available, for criminal proceedings listed in Section 15002(b) of the CARES Act, including detention hearings, initial appearances, and preliminary hearings.
https://www.txwd.uscourts.gov/coronavirus-covid-19-guidance/
https://www.txwd.uscourts.gov/wp-content/uploads/2020/03/ORDER-re-Court-Operations-032020.pdf
https://www.txwd.uscourts.gov/wp-content/uploads/2020/03/Order-Re-COVID-19.pdf
Washington
E.D. Wash.: All hearings in civil and criminal cases scheduled for in-court appearance through May 15, 2020 are vacated. All associated case management deadlines related to those affected hearings are suspended. Grand jury sessions through May 15, 2020 are vacated, and Magistrate Judge hearings and functions will be evaluated on a case-by-case basis.
As of March 30, 2020, the court authorized the use of videoconferencing, or telephone conferencing if videoconference is not reasonably available, for criminal proceedings listed in Section 15002(b) of the CARES Act, including detention hearings, initial appearances, and preliminary hearings.
https://www.waed.uscourts.gov/
W.D. Wash.: All civil and criminal hearings and trial dates scheduled to occur before July 1, 2020, are continued. The Court may proceed with video/telephonic conferences as appropriate and at the discretion of individual judges. Scheduling orders in cases may need to be amended as appropriate on a case-by-case basis All grand jury proceedings scheduled before July 1, 2020, are continued.
As of March 30, 2020, the court authorized the use of videoconferencing, or telephone conferencing if videoconference is not reasonably available, for criminal proceedings listed in Section 15002(b) of the CARES Act, including detention hearings, initial appearances, and preliminary hearings. Individual judges may continue to conduct emergency matters in the Seattle and Tacoma Courthouses if necessary.
Updated as of March 21, 2020:
Updated as of March 6, 2020:
Commercial tenants should check in with their landlord and property management personnel regarding operational procedures related to coronavirus safety. Landlords may be required to clean and maintain common spaces and surfaces, and commercial tenants should ensure that their landlord has a reasonable plan in place to respond to coronavirus, such as by regularly disinfecting common surfaces like doorknobs and elevator buttons. Tenants should also review their leases relating to tenant improvement projects because coronavirus may cause significant disruptions to construction supply chains and, as a result, contractors may be unable to complete improvement projects on time or without cost overruns. Similarly, coronavirus may cause delays or complications to various key dates in a lease, such as move-ins, move-outs, and delivery dates. Tenants should review their leases to understand what flexibility they have in terms of timing, as well as the consequences of any deadlines missed due to coronavirus. Finally, landlords may elect to reduce service, shutdown or restrict access to buildings. Accordingly, commercial tenants should (1) communicate with their landlords to understand what precautions and protocols may be implemented in response to coronavirus and (2) review their leases to take cognizance of what rights their landlords may have to access the leased premises, restrict access to the building, impose security rules and regulations or even shutdown the building entirely.
Updated as of March 19, 2020:
Yes, as long as the organization allocates line of credit draw proceeds to capital expenditures no later than 60 days after the expenditure. Proceeds of the draw do not need to be used directly to make the capital expenditures. However, the organization should keep track of the capital expenditures allocated to line of credit draws in some fashion, but it can be fairly informal. The key is keeping track of the aggregate amount of line of credit proceeds that are allocated to capital expenditures. The organization can later roll such amounts into a tax-exempt refinancing transaction. One point to keep in mind is that the portion of the line of credit allocated to capital expenditures should not be paid down. For example, if $5 million is drawn for capital expenditures and $3 million is drawn for working capital, and the line of credit is later paid down to $4 million, only $4 million can be subsequently refunded on a tax-exempt basis. The working capital portion of the line of credit would be treated as being paid down first and only the remaining outstanding amount of the line of credit could be refinanced on tax-exempt basis.
Updated as of March 8, 2020:
A material event notice is not required to be filed on EMMA in connection with virus-related events or actions unless a listed material event is triggered as a result of the event or action. While closures of facilities, reported cases of COVID-19 and other virus-related events or actions are not in and of themselves “material events” under Rule 15c2-12 that require filings on EMMA because they are not one of the 16 enumerated events requiring disclosure, issuers and obligated persons with a continuing disclosure obligation should consider whether they may want to voluntarily make some disclosure and whether various pronouncements and reports by officials of the issuer or obligated person that may be expected to reach the market may require some additional disclosure or disclaimers. Please see this additional information on disclosure obligations of issuers of municipal securities.
Disclosure about the outbreak of COVID-19 and related considerations is being included in official statements across all types of credits. Because information related to COVID-19 is rapidly changing, it may be difficult to determine the appropriate scope and content of disclosure. The disclosure analysis is highly facts and circumstances specific, and should take into account many factors, including the security for payment, the project being financed and the finances and operations of the issuer or obligated person in light of the circumstances related to the COVID-19 outbreak and other material information.
In addition to developing disclosure for any bond offerings that are in or coming to market, issuers and obligated persons should consider including appropriate disclosure about the effect of COVID-19 in any annual or quarterly filings being made on EMMA, if material. This is especially important given investor and SEC focus on these issues.
Updated as of March 16, 2020:
The SIP Orders apply to all for profit and non-profit business entities of any kind, however organized. They permit only certain essential operations of various kinds to be carried out, under penalty of a misdemeanor which can carry imprisonment up to 90 days and fines up to $1,000, both per each day that the unlawful activity continues (each day is a separate offense). The seven orders are identical in material respects; the links can be found below.
Permitted business operations must be carried out subject to Social Distancing requirements. Those requirements include 6 feet of distance (including standing in lines) and frequent hand washing.
A flow chart summarizing what business activities are permitted can be viewed here. In general, the business activities that are permitted include groceries and other food supply, cultivation, and preparation for delivery or takeout only; social services for the poor; media, gasoline and auto repair, banks, hardware, plumbers and sanitation, shipping and mailing, education only to support distance learning or food takeout, laundry, legal and accounting to comply with legal obligations, transport for essential activities, supply of products to work from home, supply of services and products to other essential operations. Also permitted are as follows: Essential Government Functions as defined by specific government agencies, Essential Infrastructure (public works construction, housing construction, utilities and telecom), Healthcare Operations including medical facilities, medical suppliers, home healthcare, pharma, biotech and veterinary, and Childcare subject to specific restrictions.
Other permitted essential activities include Minimum Basic Operations necessary to (1) maintain security, inventory and payroll, or (2) to support work from home.
Updated as of April 1, 2020:
Many lenders currently find themselves in a conundrum. They face the prospect of funding loans to a rapidly increasing number of distressed borrowers. Lenders have doubts that many of these loans will be repaid as scheduled, and in some cases don’t expect any repayment at all. However, lenders who fail to fulfill their funding commitments would be in breach of their loan agreements, absent certain conditions that would allow them to terminate or suspend their obligations to fund.
So, what are those conditions?
Loan agreements usually require the borrower to bring down all its representations and warranties on each borrowing date. These representations and warranties often include the borrower’s solvency after giving effect to that borrowing. A typical solvency definition includes prongs asserting that: the fair value of the borrower’s property is greater than its debts and liabilities, the present fair saleable value of the borrower’s property is greater than the amount necessary to pay the probable liability of its debts and liabilities, the borrower is not engaged in business for which its property would constitute unreasonably small capital, and the borrower is able to pay its debts and liabilities as they become due. Not surprisingly, borrowers may not be able to accurately make this representation in the current environment. Lenders thus should examine how the solvency definition and representation are worded in the relevant financing agreement. Because solvency requirements are based on an assessment of the borrower’s present condition, which would incorporate a circumstance even as unforeseeable as Covid-19, borrowers may not be able to bring down their representations and warranties.
If a Default has occurred or would result from the borrowing under current conditions, in most cases lenders also would not have to fund. Covenants and Defaults tend to vary from deal to deal and may differ substantially depending on the size and profile of the borrower, industry sector, geographic markets and other factors. These provisions often include (i) failure of the borrower to maintain and operate its business in substantially the same manner as on the date it signed the financing agreement and (ii) failure to comply with financial covenants tied to the earnings, cash-flow and other historical performance metrics. Note that a Default is not identical to an Event of Default, as non-payment defaults often include a cure period during which the borrower can remedy the Default. However, in most cases, a Default will suspend a lender’s obligation to fund, while an Event of Default is typically required before a lender can add a default rate to the interest margin or accelerate its loan.
One additional possibility to consider, which has been a hot topic recently, is whether Covid-19 consequences constitute a material adverse change (MAC) to, or has a material adverse effect (MAE) on, the borrower and its business. This question has been debated by many legal and financial observers given the extraordinary nature of Covid-19 and its attendant impact on the global economy, particularly on certain sectors such as travel and leisure, energy and retail. Although very rarely invoked by lenders, even during past crises such as the burst of the dotcom bubble, the 9/11 attacks and the 2008 financial crisis, MAC/MAE provisions may enable lenders to cut the cord on funding or gain leverage in workout discussions with borrowers.
Many loan agreements either include a “no MAC” representation and warranty that must be brought down in connection with any draw or a specific “no MAC” condition to borrowing. When the occurrence of a MAC or MAE has been litigated, the inquiries have been intensely fact-specific. The duration and severity of the downturn, circumstances faced by other business in the same industry, actual versus potential harm suffered by the debtor, and other factors are relevant. Nevertheless, courts in New York and Delaware usually have sided with borrowers, and at minimum a challenging lender must be willing to endure costly and lengthy litigation.
Each lender engaged with a desperate borrower seeking to draw down maximum liquidity faces complex choices, not only how to deny funding but whether it is wise to pursue such an approach at all. These scenarios are not amenable to easy answers now, and they likely will become increasingly vexing in the coming weeks and months.
Updated as of March 6, 2020:
Given the current outbreak, privacy laws in the US and EU generally do not prevent businesses from asking visitors to take temperature tests in order to decide whether to grant entry. However, it is important to structure the tests narrowly to accomplish the business’ legitimate business objective. For example, businesses may want to consider:
Updated as of March 6, 2020:
In general, in the European Economic Area and the UK, the GDPR and, respectively, its similar local privacy laws, put severe limits on the ability to ask such questions. In respect of European visitors, businesses should consider the following:
Updated as of March 12, 2020:
Employers should carefully assess international travel. The U.S. has already implemented a travel ban from certain countries for non-U.S. citizens and permanent residents, and similar travel restrictions may continue to emerge across the globe. For example, foreigners who have recently been in Hubei and Hubei-issued Chinese passport holders are generally barred from entering Japan. This can lead to the reality that some employees who depart the country may not be able to re-enter for the foreseeable future, whether due to travel restrictions or mandated quarantine in their country of visit. Furthermore, for employees requiring a visa for entry into a particular country, international consulates and visa application centers will likely experience increased volume/backlogs and office closures cannot be discounted as the situation continues to progress. This will likely impact any new international hires who businesses had planned to onboard in a new country in the near future. Travel for recruiting will likely also be impacted and moving to remote and video interviewing will likely be necessary. As such, companies will need to assess their recruiting and onboarding plans and be ready to be flexible.
Employers should review visa and work permit compliance requirements. As disruptions to the workforce continue to grow, employers should take note on whether any change to working conditions carries immigration considerations. For example, some employment visas and work permits- such as the popular U.S. H-1B- are work location specific. Should the nonimmigrant employee begin a work-from-home arrangement, employers should consider whether any notification is required to the relevant immigration authorities.
Employers should monitor ongoing government-issued immigration guidance. There is also the possibility that governments may lax immigration requirements given the current circumstances. For example, U.S. Immigration and Custom Enforcement’s (ICE) Student and Exchange Visitor Program announced that it would be adapting more flexible procedures for international student reporting requirements, as many universities prepare to move from on-campus to remote learning.
Updated as of March 6, 2020:
Be alert for increased phishing attempts. Threat actors are notorious for using crisis moments to their advantage. They may try, for example, to send a spoofed email that looks like an emergency alert from a trusted executive asking employees to log in with network credentials to receive the latest information or otherwise turn over private information. These fake emails can be sophisticated and on a good day can dupe unsuspecting employees. During a crisis, it’s even easier for employees fall victim to a scam while caught up in stress, fear or panic. Alert employees to these increased risks and consider friendly reminder campaigns about security and being on the lookout for phishing attempts.
Remote working arrangements can introduce new vulnerabilities – take steps to plan, prepare and defend against them. With the potential for high volumes of employees working remotely, network systems and support may be strained. Information security teams should consider how to identify potential increased risks of these arrangements, prepare to defend against those risks, and evaluate whether and how the incident response team can deploy communications and a rapid response should the need arise.
Updated as of March 6, 2020:
The SEC has recently advised all companies “to consider their activities in light of their disclosure obligations under the federal securities laws.” Hundreds of public companies have added new coronavirus risk factors or added language about the outbreak to existing risk factors. The Commission also reminds those making coronavirus disclosures “to take the necessary steps to avoid selective disclosures and to disseminate such information broadly. Depending on a company’s particular circumstances, it should consider whether it may need to revisit, refresh, or update previous disclosure to the extent that the information becomes materially inaccurate.”
If your company has become aware of a risk related to the coronavirus that would be material to your investors, you should refrain from engaging in securities transactions with the public and take steps to prevent insiders who are aware of these matters from trading on such information until investors have been appropriately informed about the risk.
Updated as of March 21, 2020:
Even if a contract does not have a force majeure clause, a party looking to excuse its performance under a contract still may have options under the law. The common law doctrines of “commercial impracticability/impossibility” and “frustration of purpose” may provide relief where a contract is silent with respect to force majeure.
Commercial Impracticability/Impossibility
Though the law varies by state, as a general matter, a party may be excused from performance if it can establish that, due to the occurrence of an unexpected event—the “non-occurrence” of which was a “basic assumption” of the parties when entering the agreement—performance has been rendered “impracticable.” This principle has traditionally been invoked in three categories of cases: 1) the death or incapacity of a person necessary for performance, 2) the destruction of a specific thing necessary for performance, and 3) government action that prohibits performance or imposes requirements that make performance impracticable. But these categories are not exhaustive, and the scope of the doctrine has generally expanded over time.
Some jurisdictions (including New York) permit invocation of this excuse only if performance is truly impossible. Other jurisdictions (including California) permit this excuse if performance is “impracticable”—in other words, if performance will involve “extreme and unreasonable difficulty, expense, injury, or loss to one of the parties.” For example, performance may be “impracticable” in the case of a severe shortage of raw materials or of supplies due to an unforeseen event, which causes a marked increase in cost or prevents performance altogether. A mere change, however, in the degree of difficulty or expense, unless far outside the ordinary, will not give rise to impracticability since parties assume such a risk when contracting.
While the principle now has a broader reach than it once did in many jurisdictions, it still cannot generally be invoked on the basis of dramatic market shifts, issues with the availability of credit, and/or the performing parties’ financial health. As a general matter courts take the view that the continuation of existing market conditions and of the financial situation of the parties ordinarily is not assumed when entering an agreement. For that reason, much like force majeure, it is critical that the intervening event itself have an impact on performance—the further attenuated the connection between the event and contract performance the more difficult it will be to invoke the defense.
Uniform Commercial Code § 2-615 also recognizes that sellers of goods may have an excuse for a delay in delivery or even for non-delivery if delivery as agreed has been made impracticable by the occurrence of an unforeseen event or by compliance in good faith with governmental regulations. Commentators often refer to this as the UCC’s version of impracticability. If invoking 2-615, the seller must notify the buyer that there will be a delay in delivery, a non-delivery, or a partial delivery. In turn, under Section 2-616, the buyer may then terminate the agreement and discharge any unexecuted portion of the contract or elect to modify the contract by agreeing to accept the partial delivery, if a delay in delivery or a partial delivery substantially impairs the value of the whole contract.
Frustration of Purpose
A party may also be excused from performance sometimes if it can show that, due to the occurrence of an unexpected event, the contract’s principal purpose is substantially frustrated, rendering the agreement effectively meaningless to the excused party. Unlike commercial impracticability, frustration of purpose involves no true failure of performance. In fact, in many instances the parties are still technically capable of performing, notwithstanding the occurrence of a frustrating event, but due to the occurrence of that event, one party’s performance has become virtually worthless to the other.
Like commercial impracticability, frustration of purpose is a narrow defense that only arises if the non-occurrence of the unexpected event was a basic assumption of the contract. A party thus cannot invoke frustration of purpose on the ground that a transaction was anticipated to be profitable but is now unprofitable, as unprofitability is a risk assumed when contracting. Further, frustration of purpose only occurs if the purpose of the contract has been totally, or nearly totally, frustrated. The frustration must be so severe that it is not fairly to be regarded as within the risks that the invoking party assumed under the contract.
Unlike the doctrine of force majeure, there aren’t really “classic” examples of purpose-frustrating events, because each contract’s “purpose” is a little bit different. While it is easy to imagine scenarios where governmental actions—like shelter-in-place mandates—might frustrate commercial purposes, it is not yet clear how far courts will be willing to go in determining that the pandemic itself frustrates a contract’s purpose. On the one hand, one could imagine a court allowing a restaurant owner out of its commercial lease obligations in places where Governors have forbidden the dining public from leaving their homes. It is much less clear, however, if the same result would obtain in a state without any such edicts, if the populations in those places simply elected not to leave their houses due to concern about contracting the virus.
* * *
Having a strong understanding of commercial impracticability and frustration of purpose law is critical during these uncertain times. It will often be the case—particularly where the obligation a contracting party is looking to excuse is a payment obligation—where frustration of purpose proves the more natural excuse for nonperformance than force majeure. Likewise, just because the parties did not negotiate a force majeure provision does not necessarily mean that force majeure-like protections are unavailable to a litigant through the various iterations of commercial impracticability. As with force majeure, it is important to be proactive in invoking these rights and communicating issues with your counterparties. These defenses are exceedingly fact-specific and there really is no single answer as to how matters will play out.
Updated as of March 20, 2020:
As the COVID-19 outbreak continues to spread and government authorities ramp up measures to mitigate its impact, companies in virtually all industries worldwide are finding that the virus is either affecting their ability to perform their contractual obligations, or similarly impacting their contractual counterparties. Since the World Health Organization declared COVID-19 a pandemic just two weeks ago, governments have imposed unprecedented restrictions on travel and public life. Cities and states have implemented (or are considering) measures to combat the spread of the virus, including everything from issuing statewide shelter-in-place orders, to closing public schools, to prohibiting dine-in services at bars and restaurants, and issuing guidance to encourage the public to engage in social distancing. In the past week alone, the Trump administration released guidelines calling on the public to avoid groups of more than 10 people and discretionary travel, and the Governors of New York and California have ordered all residents to remain in their homes to the extent practicable. These wide-sweeping government restrictions have affected businesses in every sector in the economy.
A threshold legal question for many companies faced with this uncertainty is whether the COVID-19 pandemic, or the actions taken by governmental authorities to address it, constitute force majeure events. While the intuitive response, given the severity and scale of the COVID-19 disruption, would tend to be yes—and that may well be the answer in many circumstances—there is no bright line answer. As a general matter, parties seeking to invoke force majeure must look to the specific force majeure provisions in their contracts, which can vary widely across contracts and industries. Whether COVID-19 constitutes a contractual force majeure event excusing performance depends on the terms of the provision and the unique facts and circumstances of the entity claiming an inability to perform.
Generally, force majeure clauses will either specifically delineate a set of triggering events, (e.g., “quarantine,” “epidemic,” “government action,”), or they will contain catch-all language requiring that the event affecting performance be one that was unforeseeable by the parties and beyond their reasonable control. In deciding whether to invoke a force majeure clause to delay or excuse performance, a contracting party must ask itself two threshold questions.
First, does the party’s particular circumstances flowing from COVID-19 fall within the scope of the definition of “force majeure” in the contract provision? Terms such as “acts of God,” “natural disaster,” or “act of government,” would need to be fit to the circumstances at hand. Wide-spread infections of work forces, “shelter-in-place” orders, mass-venue closures, mandatory quarantines of people and cargo, and (potential) temporary nationalization of private enterprises are all examples of events that might well fall within the ambit of a contract’s force majeure provision.
Assuming the facts fit within the scope of the force majeure clause, the second broad question requires an analysis of if, and if so how, the contractual provision links the force majeure event with the event with performance. Some contracts require that the force majeure describes the impact that the force majeure event must have on contractual performance. Many contracts state that the force majeure event must render performance illegal or impossible, and courts have strictly construed those terms to exclude situations where performance has been rendered more expensive or significantly more difficult than originally contemplated. On the other hand, some force majeure clauses excuse performance where the event has rendered it “commercially impractical.” Where a force majeure clause is silent on the issue, parties should be aware of the standard used by the courts in their jurisdiction, because while many require that performance be “impossible” for nonperformance to be excused, that is not the standard in all jurisdictions. There must be a causal connection between the COVID-19 triggering circumstances and the party’s claimed inability to perform. In short, each contract’s terms and the unique facts and circumstances must be analyzed under the applicable law. We are already seeing scenarios where COVID-19, almost by definition, constitutes force majeure under the circumstances, and we can envision numerous other, less direct scenarios where strong arguments would support claims that COVID-19 should excuse (or delay) performance under a force majeure clause.
That said, today’s rapidly evolving real world scenarios can quickly get thorny. Consider a manufacturer that sells widgets is deemed by the government to be “nonessential” and thus required by edict to significantly reduce its workforce due to COVID-19. As a result, the seller is unable to fulfill its supply contractual obligations to a buyer. Further, assume that the buyer has been deemed an essential business and remains in full operation. If, as a result of the seller’s default, that downstream buyer is then unable to fulfil its obligations to a further downstream third party, it could be arguable whether a force majeure clause between the buyer and the third party might excuse the seller’s performance. A clause that referred to “government action,” might excuse the seller’s nonperformance under the right circumstances, while a clause that specifically identifies (as some do) “failure of suppliers” would even more clearly support force majeure downstream.
Many force majeure clauses contain notice provisions that are important to understand when assessing a party’s rights or risks under a contract. While it may be difficult to discern exactly when compliance with the contract became impossible (or commercially impractical), contracts may call for prompt notice to counterparties of the fact of the force majeure event, even if the event has not yet caused delay or inability to perform. Many contracts call for such notice within a certain number of days of the force majeure event. Contracting parties should review their contracts now to understand what, if any, notice obligations they may have. All the same, if you receive one of these sorts of notices, be sure review your contract language carefully to be sure that the non-performance is in fact excused and has been timely noticed. Do not just assume that the invocation of force majeure is valid given the unprecedented COVID-19 circumstances.
Finally, and importantly, businesses should be mindful that they may find themselves on both sides of the force majeure issue—on the one hand, seeking to enforce a counter-party’s performance of the contract in one context, while seeking to be excused from performance in another. As such, it is important that companies consider all potential implications of the positions they are taking.
Updated as of April 1, 2020:
For Hart-Scott-Rodino filings, the FTC and DOJ have implemented a temporary e-filing system, effective March 17. The preparation of HSR filings will proceed as usual, but some glitches and delays can be expected as the agencies get this new filing system up and running. Importantly, early termination of the HSR waiting period will not be granted while this temporary system is in place. Therefore, mergers that present no competitive issues will not be able to close until the full 30-day initial waiting period has expired. Although the FTC and DOJ are set up to for telework, merger reviews may be prolonged beyond normally anticipated time frames. Expect more pull-and-refiles than under normal circumstances, but a significant increase in Second Requests is unlikely.
Updated as of March 6, 2020:
Natural disasters and emergencies can bring out the best or worst in human nature. The antitrust agencies can be expected to target bad actors trying to exploit the coronavirus crisis. The Department of Justice will be on the lookout for companies that take advantage of Federal, State and local government procurement of goods and services to respond to the coronavirus crises by price fixing, bid rigging and market allocations. The Federal Trade Commission will be on the lookout for companies that violate consumer protections laws.
The antitrust laws, however, are sufficiently flexible to accommodate competitors joining together to respond to the coronavirus crisis. For example, hospitals or other health care facilities may need to combine resources or services to meet the needs of affected communities or two pharmaceutical companies may need to combined resources to more quickly develop a vaccine. Although these and other joint efforts by competitors to respond to the coronavirus crisis are subject to review under the antitrust laws, antitrust analysis will take into account changes in market conditions brought on by the coronavirus crisis.
If joining forces with a competitor will allow a more effective response to the coronavirus crisis, counsel can help you design a joint collaboration in a manner consistent with the antitrust laws.
Updated as of March 11, 2020:
Updated as of March 11, 2020:
Challenging economic environments, whether temporary or long-term, put pressure on sales organizations to make sales. This can lead to increased risk of fraud, kickback schemes, bribery, and more. There are several steps companies can take to reduce those risks, including:
Argentina (in Spanish) – Link 2
Bolivia (in Spanish)
Brazil (in Portuguese)
Chile (in Spanish) – Link 2
Colombia (in Spanish)
Costa Rica (in Spanish)
Ecuador (in Spanish) – Link 2
El Salvador (in Spanish)
Guatemala (in Spanish)
Guyana (in English)
Honduras (in Spanish)
Mexico (in Spanish)
Nicaragua (in Spanish)
Panama (in Spanish)
Paraguay (in Spanish)
Uruguay (in Spanish)
Canada (in English and French)
European Center for Disease Control and Prevention
Austria (in German)
Belgium (in Dutch, English, French and German)
Croatia (in Croatian)
Czech Republic (in Czech)
Denmark (in Danish, English and German)
Finland (in English, Finnish and Swedish)
France (in French)
Germany (in German) – Link 2 (contains links to other German sources)
Greece (in Greek)
Iceland (in Icelandic)
Ireland
Italy (in Italian) – Link 2
Netherlands (in Dutch and English)
Norway (in Norwegian)
Portugal (in Portuguese)
Romania
Russia (in Russian)
Spain (in Spanish)
Sweden (in Swedish)
Switzerland (in German) – Link 2
Ukraine (in Ukrainian)
United Kingdom
Afghanistan (in Dari (Persian)
Algeria (in Arabic and French)
Bahrain (in Arabic)
Iran (in Farsi (Persian)
Iraq (in Arabic)
Israel (in Hebrew, Arabic, English, Russian)
Kurdistan (in Arabic and English)
Kuwait (in Arabic and English)
Lebanon (in Arabic and English)
Oman (in Arabic and English)
Qatar (in Arabic and English)
Saudi Arabia (in Arabic and English)
Turkey (in Turkish) – Link 2
United Arab Emirates (in Arabic)
Australia (in English)
India (in Hindi and English)
Japan (in Japanese; with some info in English)
Macau (in Chinese and Portuguese)
Malaysia (in Malay and English)
New Zealand (in English)
Pakistan (in English)
Philippines (in English)
Singapore (in English)
South Korea (in Korean)
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Thailand (in Thai)
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This course is eligible for New York and California CLE credit. Please complete and retain the applicable form for your records. The New York self-study affirmation must also be emailed to Melissa Woods ([email protected]) and Jane Gracey ([email protected]). The California self-study form does not need to be emailed to Melissa Woods and Jane Gracey.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of New York. This transitional and non-transitional continuing legal education course has been approved in accordance with the requirements of the Continuing Legal Education Board for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied toward the areas of professional practice requirement.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of California. This continuing legal education course has been approved in accordance with the requirements of the State Bar of California for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied to the general requirement.
This course is eligible for New York and California CLE credit. Please complete and retain the applicable form for your records. The New York self-study affirmation must also be emailed to Melissa Woods ([email protected]) and Jane Gracey ([email protected]). The California self-study form does not need to be emailed to Melissa Woods and Jane Gracey.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of New York. This transitional and non-transitional continuing legal education course has been approved in accordance with the requirements of the Continuing Legal Education Board for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied toward the areas of professional practice requirement.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of California. This continuing legal education course has been approved in accordance with the requirements of the State Bar of California for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied to the general requirement.
This course is eligible for New York and California CLE credit. Please complete and retain the applicable form for your records. The New York self-study affirmation must also be emailed to Melissa Woods ([email protected]) and Jane Gracey ([email protected]). The California self-study form does not need to be emailed to Melissa Woods and Jane Gracey.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of New York. This transitional and non-transitional continuing legal education course has been approved in accordance with the requirements of the Continuing Legal Education Board for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied toward the areas of professional practice requirement.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of California. This continuing legal education course has been approved in accordance with the requirements of the State Bar of California for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied to the general requirement.
This course is eligible for New York and California CLE credit. Please complete and retain the applicable form for your records. The New York self-study affirmation must also be emailed to Melissa Woods ([email protected]) and Jane Gracey ([email protected]). The California self-study form does not need to be emailed to Melissa Woods and Jane Gracey.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of New York. This transitional and non-transitional continuing legal education course has been approved in accordance with the requirements of the Continuing Legal Education Board for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied toward the areas of professional practice requirement.
Orrick, Herrington & Sutcliffe LLP is an accredited MCLE provider in the State of California. This continuing legal education course has been approved in accordance with the requirements of the State Bar of California for a maximum of 1.0 credit hour, of which 1.0 credit hour can be applied to the general requirement.