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

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

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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Preparing a COVID-19 Reopening Plan

Five Steps to Take Right Now

While banks have remained open as part of critical infrastructure throughout the COVID-19 pandemic, and many were able to keep branches opened throughout the pandemic, we are expecting many banks to further expand branch openings in the coming weeks. Moreover, many business customers of banks will also be seeking to reopen, with their ability to generate revenue critical to the long-term return of the U.S. economy (and the bank’s asset quality).

The consensus of most business folks, including bankers, is that as the U.S. gradually re-opens, the look and feel of businesses will change dramatically. Before the world can return to its full pre-COVID-19 normal, this interim period between the lifting of shelter in place orders and the broad distribution of vaccines or effective treatments is projected by experts to last at least one, and possibly as long as two years. Colleagues at Bryan Cave Leighton Paisner have prepared an alert focusing on public facing businesses which must significantly change their operations to reduce the risk of coronavirus transmission.

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Guidance for Public Company PPP Recipients

On April 23, 2020, the U.S. Treasury published FAQ #31 for the Paycheck Protection Program, providing a safe harbor for return of funds by May 7, 2020 in cases of insufficient need by recipients of PPP funds by public companies with liquidity alternatives.

With this background, I joined several of my securities law and litigation colleagues to publish guidance for public company Paycheck Protection Program loan recipients.

PPP applications require certification that “[c]urrent economic uncertainty makes this loan request necessary to support ongoing operations.”  To the extent that public companies may have had other reliable, accessible sources of capital markets funding, the borrower’s certification of economic need could be called into question. Public companies are clearly not all in the same sitaution with regard to their ability to obtain other sources of funding, and face a number of difficult decisions.

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PPP Litigation and Regulatory Risks

With assistance from some of my litigation colleagues, Bryan Cave Leighton Paisner has just published guidance on re-evaluating practices and considering some of the litigation risks that could arise with the Paycheck Protection Program.

Prior to the PPP going live on April 3, banks scrambled to assemble teams and online application in-take and processing protocols to handle the onslaught of applications.  Over 1.6 million small businesses were approved for relief, a small fraction of the total number of small businesses in the U.S. 

For many, the Program ground to a halt on April 16, 2020, a mere 13 days after it opened, when all of the $349 billion in funding was exhausted.  The abrupt and swift depletion of the Program left many small business owners in dismay and frustrated with their banks, and pondering what recourse they might have.  A few quickly filed lawsuits.  More lawsuits no doubt are coming.  

As Congress gets set to appropriate more than $300 billion in additional funding for the Program, and lenders prepare for ramping up their PPP operations for the second round of applications, it is smart to re-evaluate practices and consider some of the litigation risks that could arise. 

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Introduction to the Main Street Lending Program

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

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

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

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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COVID-19 and Economic Stabilization Act, Foreclosures, Disaster Assistance Loans, and Consumer Class Actions

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, which is the second of many, we have highlighted some of the client alerts that we believe may be of specific importance to our community bank clients.

Economic Stimulus under the U.S. Coronavirus Economic Stabilization Act of 2020

The Coronavirus Economic Stabilization Act of 2020, Title IV of the CARES Act provides, among other things, $500 billion to the U.S. Treasury’s Exchange Stabilization Fund to provide loans, loan guarantees, and other investments in support of eligible businesses, States and municipalities and subsidies necessary for such loans, loan guarantees and other investments. This alert summarizes what impact the Stabilization Act may have on businesses and whether those businesses may be eligible for assistance.

Foreclosure and Receiver Issues in the United States during COVID-19

This alert provides an overview of the responses of courts and local and state governments of certain jurisdictions, as well as of the federal government, to the COVID-19 outbreak. The analysis has a particular focus on mortgage foreclosures and evictions, particularly in the commercial context, although information and guidance remains limited. Effects on residential foreclosures and evictions have been included as governments have tended to provide protection to residential properties first. Eventually, more state and local governments may provide guidance as to commercial foreclosures and evictions

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