News & Legal Updates Archive

COVID-19 may change the restructuring playbook and may make achieving out-of-court restructurings more difficult.

Starting Tuesday, March 24 at 12:01 a.m. all individuals in Michigan will be required to stay in their homes and all non-essential businesses will be required to shut their doors until at least April 13, 2020.

Starting on Monday, March 23 at 11:59 p.m. all individuals in Ohio will be required to stay in their homes and all non-essential businesses will be required to shut their doors until at least April 6, 2020.

In recent guidance, the Centers for Medicare and Medicaid Services (CMS) intended to help states better understand policy options for paying Medicaid providers using telehealth to deliver patient services in combating COVID-19. CMS has recently been encouraging providers to use telehealth services due to the benefit of increasing access to care while reducing the risks for spread of infection and exposure for vulnerable populations.

Local governments, business organizations, hospitality groups and restaurants are turning to the public to help bridge the fiscal gap for employees during government mandated shutdowns and scale-backs.

As the coronavirus and it's economic impact continue spreading across the nation, employers are dealing with a variety of unprecedented issues in regards to their business operations, including employee benefits plans. Many employers are concerned about continuing healthcare coverage for employees who are furloughed or laid off during this time.

Thoughts from an experienced restructuring attorney based on prior slowdowns on how to prepare for the economic fallout from the coronavirus. 

A Force Majeure (or Act of God) clause in a lease limits or eliminates liability for “an event or effect that can be neither anticipated nor controlled.”^[i] There is a tragic irony in the fact that a microscopic organism such as Covid-19 can trigger a lease clause that means “superior force.” But, for the time being at least, the novel coronavirus known as Covid-19 is a superior force – does it, however, trigger the force majeure clause in your lease, and thereby offer protection from liability to both landlords and tenants?

As organizations and employees work from home, we can expect cyber criminals to attempt to profit off of the confusion. Here are some tips organizations should consider to protect themselves from cybercriminals during this unique “work from home” time:

Treasury Secretary Steve Mnuchin announced that individual taxpayers will be allowed a 90-day extension to pay federal income taxes otherwise due on April 15 of up to $1 million and that C corporations will receive a similar accommodation on up to $10 million in corporate income taxes.

Two core elements of the Families First Coronavirus Response Act (FFCRA) that was signed into law on March 18 were the extension of paid sick leave benefits and Family Medical Leave Act (FMLA) benefits to employees affected by the COVID-19 outbreak working for employers with fewer than 500 employees and government employees. With many employers and self-employed individuals already feeling the financial effects on their businesses from social distancing and mandatory closures, the FFCRA includes provisions to help reduce the cost of these expanded benefits on affected employers though refundable tax credits. 

In an effort to curb the negative economic affects of Governor DeWine’s executive order closing Ohio restaurants and bars, the Ohio Department of Commerce has announced a one-time liquor buyback option.

Most employers know that they should steer clear of asking employees certain medical questions to avoid overstepping the Americans with Disabilities Act (ADA). Yet, the coronavirus pandemic has put employers in the undesirable position of trying to assess whether employees are coming to work with symptoms of the coronavirus. So, what’s an employer to do?

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act, which includes broad assistance to businesses and individuals. For employers and employees, the bill includes measures that expand the FMLA and provide for emergency paid leave for employers of 500 or fewer employees. The law is effective April 1, 2020, and will extend these protections through December 31, 2020.

Multiple state governments, including Ohio, Illinois and Michigan, have issued varying bans on mass gatherings in response to the rapid spread of COVID-19. Together with President Trump’s guidance to limit gatherings of people to 10 or fewer, these bans have left local governments and other public bodies scrambling while trying to navigate the requirements surrounding open-meetings.

Earlier this month the U.S. Food and Drug Administration (FDA) and the Federal Trade Commission (FTC) jointly issued warning letters to seven companies—Vital Silver, Quinessence Aromatherapy Ltd., Xephyr, LLC doing business as N-Ergetics, GuruNanda, LLC, Vivify Holistic Clinic, Herbal Amy LLC, and The Jim Bakker Show—for selling products that fraudulently claim to prevent, treat or cure COVID-19. The products cited in these warning letters are teas, essential oils, tinctures and colloidal silver, all of which FDA considers unapproved drugs that pose significant risks to patient health and violate federal law.

Just as it is with the rest of life as we know it in the coronavirus era, the COVID-19 pandemic is having a dramatic impact on the norms in IP litigation deadlines. There is no consistent rule of thumb as courts across the nation are addressing IP litigation deadlines in different ways.

A summary of patent and trademark offices around the world that are granting automatic extensions or relaxing revival rules due to the coronavirus.

Christian D. Sorensen has joined the Cleveland office of McDonald Hopkins LLC as an associate in the firm’s Tax and Benefit Department.

UPDATE: The Centers for Medicare & Medicaid Services (CMS) exercised its authority under the Coronavirus Preparedness and Response Supplementation Appropriations Act by waiving Medicare telehealth originating site and telephone restrictions so that Medicare will pay for telehealth services furnished to patients in any setting (including their homes) and will allow use of a telephone with real-time audio and video capabilities (e.g., a smartphone) for telehealth services.

On Tuesday, March 17, 2020 , the Office of Inspector General (OIG) issued a policy statement and related fact sheet stating that providers will not be subject to administrative sanctions for waiving cost-sharing (deductibles or coinsurance) obligations for telehealth services during this public health crisis. 

On Tuesday, March 17, 2020, the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) announced, effective immediately, that it will exercise its enforcement discretion and will waive potential penalties for Health Insurance Portability and Accountability Act (HIPAA) violations against any health care providers that are treating patients through remote audio or video communication technologies during the COVID-19 nationwide public health emergency.

How do I respond to an employee who has tested positive for COVID-19 or had potential contact with someone who has?

LIBOR – the London Interbank Offered Rate – represents the average interest rate at which major banks reasonably expect they can borrow money from each other without putting up collateral. With only 21 months left until the 2021 deadline to transition away from LIBOR, how does COVID-19 impact LIBOR transition plans?

The United States Small Business Administration (SBA) issued guidelines for how to apply for $2 million in low-interest loans for working capital to small businesses suffering substantial economic injury as a result of the coronavirus (COVID-19).

Recently, I posted about strategy if a client learns of a customer potentially filing for bankruptcy protection. Many of the same considerations will pertain if suppliers or other vendors go down the same path.

During the past several years, conditions have been very good for borrowers. However, the spread of the coronavirus will lead to uncertainty in the lending markets. So what does this mean to you and your business?

According to the latest United States Patent and Trademark Office (USPTO) update, while their offices are closed to the public, all patent and trademark application deadlines and other deadlines are not extended. 

Although recordkeeping requirements exempt recording of illnesses like the common cold and flu, OSHA has reminded employers that COVID-19 is a recordable illness if an employee is infected as a result of performing their work-related duties.

Governors nationwide are taking unprecedented steps to mitigate negative impacts on businesses and their employees caused by the COVID-19 crisis. Most recently, Michigan Governor Gretchen Whitmer and Ohio Governor Mike DeWine followed their Illinois counterpart and announced that their respective state governments will be expanding coverage for unemployment benefits, effective immediately.

The U.S. House of Representatives has already amended the broad Families First Coronavirus Response Act legislation that provides new FMLA rights and paid sick leave for employees related to the coronavirus (COVID-19). The House had just passed the legislation with overwhelming support on Saturday, March 14, 2020.

The coronavirus crisis shouldn't be the end of your business, even if you had to temporarily shut down. To survive, you will need to preserve cash and proactively communicate with your lenders, vendors, landlords, employees, customers and insurance brokers.

It is not uncommon to receive calls from clients after learning of their customers negotiating with lenders and other creditors about balance sheet and liquidity issues, including planning for potential bankruptcy filings. Clients typically ask questions about collecting past due amounts or customers filing for bankruptcy protection. However, often unstated in these preliminary conversations, clients really want to know how they can protect themselves without losing the customer, particularly where that customer represents a significant portion of revenues

At a press conference on Sunday, March 15, 2020, Ohio’s Lt. Governor John Husted announced that Ohio will be making a series of changes to the unemployment compensation system to assist workers who are displaced as a result of the coronavirus spread.  

According to the National Restaurant Association, over 1 million restaurants operate in the United States. They employ over 15.6 million and were projected to generate sales of $899 billion in 2020. With outbreaks of the new Coronavirus (COVID-19) spreading throughout the country, the restaurant and hospitality industries have been hard hit.

In response to the unprecedented impact of the Coronavirus (COVID-19), on March 14 the  U.S. House of Representatives passed the Families First Coronavirus Response Act, which is intended to provide a broad range of assistance to businesses and individuals. Specifically, for employers and employees the bill includes measures that will expand the FMLA and provide for emergency paid leave for employers of 500 or fewer employees. The bill would extend these protections through the end of 2020.   

CMS is issuing nearly daily updates regarding its actions to support American healthcare facilities and clinical laboratories in responding to COVID-19. 

The novel coronavirus (COVID-19) is spreading across the globe, impacting work force availability, manufacturing and supply chains in a variety of industries. As the economic impact of the pandemic deepens, businesses would be wise to consider all manner of risk mitigation tools available.  One step is for businesses to consult with their insurance brokers and review their insurance policies to determine whether they have available business-interruption insurance in place to help potentially mitigate losses stemming from the pandemic.

The SEC has issued an order providing conditional regulatory relief to publically traded companies that may have been affected by the coronavirus. Subject to certain conditions, the SEC’s order provides qualifying companies an additional 45 days to file certain required reports that otherwise would be due between March 1, 2020 and April 30, 2020.

Last September, the Centers for Medicare & Medicaid Services (CMS) issued a final rule that will require providers and suppliers undergoing Medicare enrollment or revalidation (referred to in this blog as “enrolling providers”) to disclose affiliations they or a wide range of their owners, leaders or professionals, have had within the last five years with any provider or supplier involved in a “disclosable event.”

Cybercriminals continue to exploit any opportunity to target the data of unsuspecting victims with malicious malware, even using a growing health crisis like the coronavirus pandemic as subterfuge.

It used to be that restructuring lawyers would pen (on a seemingly weekly basis) law review articles and other missives about how directors and officers of insolvent or near-insolvent companies must comply with stringent fiduciary duties to creditors. The state of the law at the time created uncertainties for directors and officers and lent itself to a proliferation on this topic. 

On March 6, a court in the Central District of California granted in part a joint request for a stay of litigation in UPL NA, Inc. v. Tide International (USA), Inc. as discovery efforts were being “severely impacted by the outbreak of coronavirus.”

The U.S. Centers for Disease Control and Prevention (CDC) has issued an interim guidance for employers regarding the coronavirus (COVID-19). This guidance may help prevent workplace exposure to COVID-19.

With proper planning, the current environment may create openings to deleverage bloated balance sheets, and to fix and extract value from broken or outdated business models.

With the outbreak of the coronavirus, automotive suppliers and customers have scrambled to keep the supply chain running.  While these efforts have succeeded with few exceptions so far, the ability of suppliers to meet customers’ needs remains in jeopardy in many cases while the virus continues to spread.

McDonald Hopkins LLC has announced the addition of Serena G. Rabie as an associate in the Business Restructuring Department of the firm’s Chicago office.

As the virus continues to spread, it is unclear the long-term ramifications it will have for businesses. One of the questions companies should be asking is, “Does the coronavirus outbreak fall within the operation of a force majeure clause?”

Nicholas Miller has joined the Chicago office of McDonald Hopkins LLC, where his experience representing organizations of all sizes will enhance the firm’s Business Restructuring Department. 

The changes and issues facing both the automotive and aerospace industries are beginning to be felt in their supply bases, especially at the Tier 2, Tier 3, and lower levels.