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Georgia Passes Legislation Creating Immunity for COVID-19 Liabilities

July 6, 2020

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On June 26, 2020, Georgia’s Legislature passed the “Georgia COVID-19 Pandemic Business Safety Act” (the “Act”). The Act provides Georgia businesses with certain defenses and immunities for potential liability from claims related to the spread of COVID-19. These immunities apply broadly to the health care facilities and providers as well as other business entities and individuals.

Under the Act, no covered entity or individual will “be held liable for damages in an action involving a COVID-19 liability claim . . . unless the claimant proves that the actions . . . showed: gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.” 

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COVID-19 and Georgia’s Reopening, New DOL Guidance on the FFCRA, and Opening Trading Windows

May 5, 2020

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The devastating impact of the Coronavirus (COVID-19) needs no introduction.  BCLP has consolidated all of its client alerts regarding Coronavirus (COVID-19) as one page of resources. On that page, you can also limit by topic area, jurisdiction and areas of practice.

In this post, we have highlighted some of the client alerts that we believe may be of specific importance to our community bank clients.

Back to Work: Georgia’s Reopening Executive Order – Risks and Guidance for Businesses

On April 20, 2020, Governor Brian Kemp signed an Executive Order which initiates the process of reopening businesses within the State of Georgia on April 24, 2020, and issued a subsequent Executive Order on April 23, 2020, providing further guidance on the process for reopening (collectively the “Orders”). These Orders, which are quite limited in scope, only grant a small subset of businesses permission to reopen. They do, however, pre-empt all local and city orders that are more or less restrictive than the state-wide Orders. 

The Orders, while limited, nevertheless shed light on what the process of reopening will look like for additional business sectors going forward. All companies with locations in Georgia would be wise to invest time planning how they may implement screening, sanitation, and social distancing at their workplace to allow for a timely, safe and compliant reopening. 

This alert examines what businesses are permitted to reopen, what restrictions exist for those businesses, and advice and guidance for companies that BCLP anticipates will be affected by similar reopening orders in the future.

As the FFCRA Goes Live, the DOL Continues to Publish Revised and New Guidance for Employers

Although the federal Department of Labor (“DOL”) declared April 1 – 17 to be a temporary period of non-enforcement of the Families First Coronavirus Response Act (“FFCRA”), the DOL was far from idle during that period. Importantly, the DOL provided key revised and new guidance for employers by: (1) issuing technical corrections to the temporary rule; and (2) posting additional informal questions and answers. The new guidance provides much-needed clarity on key issues, especially since the period of non-enforcement is now over. This post examines the new guidance and provides advice for employers to comply with the provisions of the FFCRA.

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COVID-19 and Business Operations/Reopening, Cybersecurity from Home, and SEC Whistleblower Activity

April 28, 2020

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The devastating impact of the Coronavirus (COVID-19) needs no introduction.  BCLP has consolidated all of its client alerts regarding Coronavirus (COVID-19) as one page of resources. On that page, you can also limit by topic area, jurisdiction and areas of practice.

In this post, we have highlighted some of the client alerts that we believe may be of specific importance to our community bank clients.

U.S. Businesses Challenge Government Orders in Attempt to Continue Operations

Shelter-in-place and social distancing have become the new normal as we try to combat the spread of COVID-19 in the U.S.  Many state governments have implemented stay-home or shelter-in-place orders to try to “flatten the curve” and protect citizens’ safety. But as time passes, businesses are also concerned.  Under many such executive orders, a business that is not deemed “essential” or “life-sustaining” may be required to stop in-person operations, and we’re starting to see an uptick in local enforcement, including cease and desist letters and revocation of occupancy permits. Some shuttered businesses have started to bring their claims to court.  This post provides a summary of the prominent claims and factual allegations featured in complaints from business plaintiffs.   

Employer Guidance for Reopening the Workplace

Over the past week, increased discussion of reopening the U.S. economy has raised numerous questions as employers prepare to return their employees to the workplace. While the exact steps to reopen the economy remain uncertain, employers should begin to consider what measures will help ensure a safe, orderly return to business, particularly since President Trump’s White House issued its Opening Up America Again three phased approach for re-opening the economy, and the Equal Employment Opportunity Commission issued guidance about returning to work. This alert details the potential measures and related issues BCLP suggests clients consider in preparing to return to work, whether next week, next month, or this summer.

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SBA PPP Eligibility Requirements

April 16, 2020

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The SBA has made clear that businesses with 500 or fewer employees can apply for PPP funds, with certain exceptions. The number of employees for a business is generally determined by the average number of people employed for each pay period over the business’s latest 12 calendar months. For this determination, any person on the payroll must be included as one employee regardless of hours worked or temporary status.

However, for businesses with greater than 500 employees, there are still three possible ways qualify for PPP funds. This post analyzes the three additional methods for a business to qualify for PPP funds, based on the latest guidance from the SBA as of April 15, 2020.

Method 1: SBA Employee-Based Size Standards

Under the CARES Act, the SBA requires borrowers to have 500 or fewer employees or the number of employees specified per the SBA’s Size Standards table. Thus, a business with greater than 500 employees may still be eligible if it meets applicable SBA employee-based size standards for its primary industry. A business’s primary industry is denoted by its North American Industry Classification System (NAICS) Code. A list of all NAICS codes is available here.

For example, a business in the in the primary industry of natural gas extraction (NAICS Code 211130) with 1,000 employees would still be eligible for PPP funds because the applicable SBA employee-based size standard is 1,250.

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SBA PPP April 14 Interim Final Rule Guidance

April 16, 2020

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On April 14, 2020, the SBA published an interim final rule that provides additional guidance regarding topics of confusion among both Payroll Protection Program (“PPP”) lenders and borrowers. This new rule supplements the first interim final rule, which was issued by the SBA on April 2, 2020, and specifically addresses the eligibility of self-employed individuals, partnerships, director-owned businesses, and legal gambling businesses. This post covers the updates detailed in the new interim final rule, based on the latest guidance from the SBA as of April 16, 2020.

Self-Employed Individuals

Eligibility

The new interim final rule makes clear that an individual may be eligible for a PPP loan if the individual:

  1. was in operation as a business on February 15, 2020;
  2. is an individual with self-employment income (such as an independent contractor or a sole proprietor);
  3. has a principal place of residence in the United States; and
  4. filed or will file a Form 1040 Schedule C for 2019.

The SBA has communicated that it will issue additional guidance for those individuals with self-employment income who: (i) were not in operation in 2019 but who were in operation on February 15, 2020, and (ii) will file a Form 1040 Schedule C for 2020.

We note that individuals should be aware that participation in the PPP may affect eligibility for state-administered unemployment compensation or unemployment assistance programs.

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Introduction to the Main Street Lending Program

April 15, 2020

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On April 9, 2020, the Federal Reserve announced that it is taking additional action to provide up to $2.3 trillion in loans to support the economy through various programs, including the Main Street Lending Program (“MSLP”).  The Fed intends that the MSLP will ensure credit flow to small and mid-sized businesses by providing support to businesses that were in good financial standing prior to the COVID-19 crisis, on terms and conditions to be set by the Federal Reserve. 

The MSLP consists of two facilities:

  • The Main Street New Loan Facility (“MSNLF”) for unsecured term loans originated on or after April 8, 2020; and
  • The Main Street Expanded Loan Facility (“MSELF”) for upsize tranches of secured or unsecured term loans originated before April 8, 2020 (provided the upsize is on or after April 8, 2020). 
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COVID-19 and Executing Contracts at Home, Force Majeure Considerations, and MAE Clauses in M&A Transactions

April 13, 2020

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The devastating impact of the Coronavirus (COVID-19) needs no introduction.  BCLP has consolidated all of its client alerts regarding Coronavirus (COVID-19) as one page of resources. On that page, you can also limit by topic area, jurisdiction and areas of practice.

In this post, we have highlighted some of the client alerts that we believe may be of specific importance to our community bank clients.

Executing U.S. Contracts While Working from Home

Now that many of us are working from home and social distancing, can we still close deals in the US with signed agreements? Are electronically signed contracts really enforceable? Fortunately, most contracts can be entered into electronically without the need to print the agreement and sign it with a pen. This alert discusses the Uniform Electronic Transactions Act, the Federal Electronic Signatures in Global and National Commerce Act, and advises parties how to use readily available services to create legally enforceable contracts with electronic signatures. 

Force Majeure and COVID-19: Considerations for Businesses in the U.S.

In light of the COVID-19 pandemic, many parties are questioning whether their performance of a contract may be excused under a force majeure clause. Force majeure refers to a contractual defense under which a party may be relieved from liability for non-performance if unforeseeable circumstances beyond the party’s control prevent or delay the party from fulfilling its obligations under a contract. This alert outlines the key questions for a force majeure analysis, analyzes the implications of invoking force majeure, and discusses its interaction with insurance coverage.

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COVID-19 and Emergency Leave Plans, Retirement Saving, and Insider Trading

April 10, 2020

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The devastating impact of the Coronavirus (COVID-19) needs no introduction.  BCLP has consolidated all of its client alerts regarding Coronavirus (COVID-19) as one page of resources. On that page, you can also limit by topic area, jurisdiction and areas of practice.

In this post, we have highlighted some of the client alerts that we believe may be of specific importance to our community bank clients.

Emergency Leave-Sharing Plans for U.S. Employers

In addition to the paid sick leave and family leave U.S. employers must provide under the Families First Coronavirus Response Act, some employers are seeking additional ways to support employees affected by COVID-19. This alert reviews IRS guidance and details how employers can implement an emergency leave-sharing plan in response to the crisis.

Unraveling U.S. Retirement Savings – How a Global Pandemic Threatens to Undo Decades of Planning

With the economy in a free-fall and the U.S. government scrambling to create a financial safety net for citizens, giving access to tax-qualified retirement savings was a natural piece of Congress’ plan to loosen the grip on needed funds. Implementing a thoughtful, needs-based, COVID-19 withdrawal/loan policy could protect employees’ financial security for decades to come. This alert covers the options available to plan sponsors to combat the economic impact of COVID-19.

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COVID-19 and the CARES Act; Financial Services Regulators Respond to the Crisis

April 1, 2020

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The devastating impact of the Coronavirus (COVID-19) needs no introduction.  BCLP has consolidated all of its client alerts regarding Coronavirus (COVID-19) as one page of resources. On that page, you can also limit by topic area, jurisdiction and areas of practice.

In this post, we have highlighted some of the client alerts that we believe may be of specific importance to our community bank clients.

U.S. Congress CARES: Legislative Overview of Tax Provisions

The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act” or “Act”) was signed into law by President Trump on Friday, March 27, 2020.  The Act provides tax benefits to businesses and individuals and includes a number of changes to the Internal Revenue Code. This alert summarizes the tax provisions in the Act and details how businesses can take advantage of the benefits.

The U.S. Shows it CARES by Enacting Taxpayer-Friendly Modifications to Rules for Deducting NOLs

This alert also focuses on the tax provisions of the CARES Act, but specifically analyzes the taxpayer-friendly modifications to the restrictions placed on the deductibility of net operating losses pursuant to the Tax Cuts and Jobs Act of 2017.

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