News & Legal Updates Archive

COVID-19 has impacted the commercial real estate market in many ways, including defaults on lease and loan payments by tenants and borrowers.  Landlords and lenders seeking to evict or judicially foreclose on defaulting tenants and borrowers may be hampered in their efforts as a result of state and local efforts to provide relief to financially stressed tenants and borrowers. 

With numerous private entities, major national health centers, and non-governmental organizations concentrating their efforts on developing and bringing to market diagnostics, treatments and preventatives to combat COVID-19, the issue of patent protection—and potential enforcement of patents—has also come to the forefront. 

On March 27, 2020, the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act was signed into law, allocating roughly $349 billion in funds to certain qualifying businesses via the U.S. Small Business Administration issuing Paycheck Protection Program loans (each a “PPP Loan”).  As small businesses rush to obtain PPP Loans, lenders should pay careful attention to the following concepts that potentially will need to be addressed.

On April 3, the Small Business Association opened the window for guaranteed loans under the Paycheck Protection Program. These loans were authorized when Congress passed the Coronavirus Aid, Relief, and Economic Security Act, commonly known as the CARES Act, into law on March 26, 2020. 

The Small Business Reorganization of 2019, also known as the SBRA, signed by the president on August 23, 2019, enacted a new subchapter V of Chapter 11 of the Bankruptcy Code.  The purpose of the SBRA was to “streamline the process by which small business debtors reorganize and rehabilitate their financial affairs.” The goal is to address the fact that chapter 11 is too expensive and too impractical for most small and not so small businesses.  A sponsor of the legislation stated that the SBRA allows small business debtors “to file bankruptcy in a timely, cost-effective manner, and hopefully allows them to remain in business” which “not only benefits the owners, but employees, suppliers, customers, and others who rely on that business.”

The CDC has issued a one page guidance document, "Interim Guidance for Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19" that concisely addresses some of the key concerns about how to keep essential infrastructure workers safe while attempting to operate during the coronavirus crisis. The new CDC guidance provides insight into one of the most pressing issues: What should an employer do in a potential employee exposure situation?    

Unlike in the Great Recession, the Federal Reserve is giving commercial real estate owners a much-needed lifeline as some owners collected only 27% of retail rents and 73% of multifamily rents for April. On April 9, the Fed announced a $2.3 trillion initiative including the Main Street New Loan Facility and Main Street Expanded Loan Facility

By now, COVID-19’s immediate and direct impacts on the business and legal communities are obvious and well known. However, the secondary affects on those industries will continue to ripple for months and years ahead. Among those is the likely surge in litigation funding that will result from the coronavirus fallout.

On April 9, 2020, Michigan’s Gov. Gretchen Whitmer issued Executive Order No. 2020-42,  which supersedes her prior “Stay Home, Stay Safe” executive order and implements new requirements for residents and businesses in the state through April  30, 2020.  While the new order reaffirms many of the primary measures in the initial order, it goes beyond that to add restrictions that limit gatherings and travel and that require all workers who are not necessary to sustain or protect life or minimum basic operations to stay home. 

The Equal Employment Opportunity Commission (EEOC), which enforces the ADA, had existing pandemic guidance in place that provided employers some initial insight on handling the onslaught of issues. However, because this crisis is like none before, employer questions and concerns have continued to evolve and many remained unaddressed. To assist employers, the EEOC updated its Technical Assistance Guidance to specifically address employers’ common COVID-19 questions and concerns related to the ADA and other EEOC-enforced laws.  

Prosecuting attorneys at the request of divisions of the Ohio Board of Health and the State of Ohio have been seeking temporary restraining orders and injunctions to compel businesses to comply with the Stay at Home Order issued by Ohio Director of Health, Dr. Amy Acton, on March 23, 2020, and amended on April 2, 2020. Local police departments have also been issuing warnings and misdemeanor citations to businesses that violate the Stay at Home Order.

On April 10, 2020, the Occupational Safety and Health Administration (OSHA) issued temporary guidance for recording cases of COVID-19 that provides relief to the construction industry. OSHA's announcement provides certainty to the construction industry and helps contractors focus their response efforts on implementing good hygiene practices in their workplaces and otherwise mitigating COVID-19’s effects.

In Ohio, employees who are disabled due to the contraction of an occupational disease or are the dependents of an employee whose death is caused by an occupational disease are entitled to compensation under Ohio’s Workers’ Compensation system.  In light of the current pandemic, an issue of concern for public employers is whether an employee has contracted COVID-19 in the performance of their work duties.

The IRS has announced that taxpayers will be allowed to defer until July 15, 2020 the filing of their federal tax returns and the payment of their federal taxes that were otherwise due between April 1, 2020 and July 15, 2020 (the “Relief Period”).

Historically low interest rates and asset values at suppressed values due to the COVID-19 crisis makes this the perfect time to consider the following estate planning strategies.

Two Illinois schoolchildren filed suit against Google in federal court in the U.S. District Court for the Northern District of California, alleging that Google violated the Illinois Biometric Information Privacy Act (BIPA) and the federal Children’s Online Privacy Protection Act (COPPA) by purportedly collecting scans of the children’s facial geometry and voiceprints for use in Google’s online G Suite for Education platform.

While it may seem minor, one important change announced by the Financial Accounting Standards Board this week impacts how franchisors recognize revenue related to advertising funds, franchise fees, and loyalty programs funds. On Wednesday, April 8, 2020, the FASB voted to further delay the implementation of the ASC Topic 606 (Revenue from Contracts with Customers) only for non-public franchisors for one year.

A joint alert was issued yesterday from the United States Department of Homeland Security Cybersecurity and Infrastructure Security Agency and the United Kingdom’s National Cyber Security Centre regarding exploitation of the novel coronavirus by malicious cyber actors.

On April 9, 2020, the Federal Reserve announced the next step in Federal support for the economy by releasing preliminary details for the Main Street Lending Program (MSLP). The MSLP is a program authorized under Title IV of the CARES Act. The announcement did not identify any timing or specific program implementation process, but the announcement provides details describing the general parameters of the program.

In an April 3, 2020 Executive Order,  Executive Order 2020-36, Michigan Governor Gretchen Whitmer has refined the requirements of the initial Stay Home, Stay Safe Executive Order issued on March 24. 

The coronavirus outbreak has not stopped public and private enforcement of the California Consumer Privacy Act (CCPA). At a time when much of the world is busy with stopping a global pandemic, recent developments serve as a reminder that regulators and litigants remain steadfast in their commitment to enforce the CCPA—and to collect the steep fines and penalties associated with violating it.

In addition to programs such as those included in the federal CARES Act, state and local governments have tirelessly prepared programs that are intended to relieve some of the economic strain COVID-19 has created. This article highlights programs and resources available to our clients located in Florida, Illinois, Michigan and Ohio.

On April 6, the United States Treasury posted additional guidance on frequently asked questions concerning the implementation of the Paycheck Protection Program established by the CARES Act.

Although each state provides a definition or list of examples of businesses that qualify as essential, businesses not expressly listed continue to face difficulties when determining if they are permitted to continue operating. As a result, state attorneys general have been forced to decipher these stay-at-home orders and hold businesses accountable.

As a result of the COVID-19 global pandemic, the world is facing a healthcare and financial crisis. The commercial real estate industry and, particularly, commercial leasing and lending, are in uncharted waters. Many American businesses are struggling to meet their commitments, including their rent and mortgage payments.

Thousands of businesses across the country are looking at months of extended business distress due to the spread of COVID-19, and many companies are reevaluating their books and accounts receivable to determine cash flow issues. Given the unknown amount of time until business resumes as usual, your company may want to consider the following when planning for cash flow issues and determining strategies for orders and collections in the coming months.

In the latest installment of PLUS Blog's PL Perspectives on Coronavirus, McDonald Hopkins' Jim Giszczak joined Gail Arkin and Jason D. Krauss to discuss possible effects of COVID-19 on cyber security and cyber insurance.

Starting Friday, April 3, 2020, all individuals in Florida will be required to limit their movements outside of their home to essential services and essential activities. The order issued by Gov. Ron DeSantis states “all persons in Florida shall limit their movements and personal interactions outside of their home to only those necessary to obtain or provide essential services or conduct essential activities.”

As a means of helping to ease the financial burden on individuals during the economic distress caused by the coronavirus, the recently enacted CARES Act has made revisions to the rules and the operations of various retirement programs. Simplistically, these revisions have made it possible for certain individuals affected by the adverse economic conditions to access funds in their retirement programs through loans or distributions. This article will discuss the new distribution and loan rules.

Voting is now open for Advisen’s 2020 Cyber Risk Awards.

On April 3, 2020, the DOL issued a 4^th set of questions and answers that dig into some of the specifics regarding when emergency paid sick leave (EPSL) and emergency FMLA (EFMLA) leave are available for use.

To assist employers, the Department of Labor has issued a Unemployment Insurance Program Letter 14-20 outlining relevant unemployment provisions of the Coronavirus Aid, Relief and Economic Security Act. The Unemployment Insurance Program Letter covers issues related to the administration of and eligibility criteria for state unemployment insurance programs and the enhanced federal provisions.

Find key information on the CARES Act, including the Paycheck Protection Program, Economic Injury Disaster Loans and how to access SBA Loans as part, in our infographic. 

The coronavirus and the attendant economic disruption is creating challenges for companies that sponsor retirement plans. This article highlights the unqiue challenges facing companies that sponsor Employee Stock Ownership Plans (ESOPs) and suggests some administrative and operational steps ESOP companies may wish to consider.

The Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services announced that it will exercise enforcement discretion for certain provisions of the HIPAA Privacy Rule and will not assess penalties against health care providers or their business associates under certain circumstances. Specifically, OCR will not assess penalties against business associates who use or disclosure protected health information for good faith uses and disclosures for public health and health oversight activities during the COVID-19 emergency period.

Late in the day on Thursday, April 2, the small business administration posted on its website a copy of the Interim Final Rule (you can view the IFR here) for the Paycheck Protection Program (PPP) loans. The SBA stated that the posting was in advance of publication in the CFR. This Interim Final Rule provides clarity on questions that potential applicants, lenders and even legislators had on the interpretation and application of the PPP. 

On March 31, 2020, the FDA issued an Emergency Use Authorization (EUA) for molecular-based laboratory developed tests (LDTs) for detection of nucleic acid from SARS-CoV-2 (Molecular LDT COVID-19) in specimens from individuals suspected of COVID-19 by their healthcare provider. On April 1, FDA authorized the first Yale New Haven Hospital’s SARS-CoV-2 PCR test —the first authorized Molecular LDT COVID-19 test.

On March 31, the U.S. FDA announced a new program, known as the Coronavirus Treatment Acceleration Program (CTAP), focused on bringing new therapies to sick patients as quickly as possible, while supporting research to ensure safety and efficacy of new treatments and countermeasures. The program aims to streamline and coordinate efforts in both the public and private sectors to bring coronavirus treatments to market.

In Michigan, first response employees will be entitled to workers’ compensation coverage for a COVID-19 injury based upon new Emergency Rules. First response employees in Michigan include individuals working in healthcare facilities, health care organizations, industrial medicine clinics, practitioners, anyone considered a first response employee under the workers’ compensation disability act, state police officers or officers of the motor carrier enforcement division of the state police.

In addition to the expanded sick pay and family medical leave benefits for employees under the Families First Coronavirus Response Act and the tax incentives and relief included in the CARES Act, employers have an additional tax-related tool to support their employees affected by the COVID-19 pandemic. Existing law allows employers to make “qualified disaster relief payments” to their employees that are tax-free to the employee.

The order, which according to the Columbus Business Journal, closes a loop created by earlier government actions to help those who have lost jobs during the pandemic statewide stay-home-order,” was welcome news for Ohio businesses, but it also raised several questions.

In March 2020, as professionals worked from home due to COVID-19, Zoom video conferences surged in popularity while, conversely, lawyers cast weary glances at the Alexa device in their home office, wondering if it was recording confidential communications. While society struggles with its relationship with ubiquitous communication devices, here is advice on properly configuring Zoom and Alexa privacy settings.

The global coronavirus crisis is having a direct or indirect impact on employer’s retirement plans. In part three of this three part alert, we examine administrative and fiduciary issues due to the effects of layoffs, Families First Corona Response Act (FFCRA) payments and the stock market decline.

Insight to help lenders and borrowers identify issues that should be considered due to the impact of the coronavirus. Specifically, lenders and borrowers should pay careful attention to the certain provisions in a credit agreement and related loan documents now more than ever.

Governor Mike DeWine announced Thursday, April 2 that Ohio’s current stay-at-home order – initially set to expire the evening of Monday, April 6 – would be extended until May 1. 

The U.S. Small Business Administration (SBA) has provided additional guidance regarding the $10,000 forgivable loan advance in accordance with the CARES Act.

The U.S. Treasury Department issued guidance for the Paycheck Protection Program (PPP) enacted under Title 1 of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) signed into law by President Donald Trump on March 27, 2020. Under the PPP, the Small Business Administration (SBA) had 30 days after the date of the enactment of the CARES Act to provide guidance to SBA lenders on the PPP.

In a press release on March 28, 2020, the Centers for Medicare and Medicaid (CMS) announced expanded availability of financial assistance for providers through accelerated and advanced Medicare payment programs. Although these expedited payments are usually offered during natural disasters in specific locations and to specific providers, CMS is expanding the program for Medicare providers throughout the country during the COVID-19 Emergency Period.

On March 31, the United States Patent and Trademark Office announced extensions of certain patent and trademark deadlines under the recently passed CARES Act. The extensions provide relief for inventors and entrepreneurs during the COVID-19 crisis.

Ohio Department of Health Director Amy Acton ordered the utilization of non-congregate sheltering in the state on Tuesday, March 31, furthering the state’s attempts to offer help to citizens impacted by the COVID-19 pandemic while also opening new dangers for property owners.