A Look Back at COVID-19 Legal Issues — and a Look Ahead

Financial services providers faced a dizzying array of regulatory and legislative requirements as a result of the COVID-19 crisis. While much of our content early in the pandemic focused on the Main Street Lending Program and other government actions, we also produced analysis on regulatory enforcement trends, litigation, and more. Examples included:

• Sign of Things to Come: Bank Is Sued in a Class Action Under the CARES Act
• SBA Issues Guidance on Paycheck Protection Program Flexibility Act
• Nonprofit, Multi-Borrower Loans and Other Updates to the Main Street Lending Program
• NY Court Blocks Mezzanine Lender’s UCC Foreclosure Sale in Light of COVID-19 Pandemic
• OCC Publishes Semiannual Risk Perspective for Fall 2020 – Key Issues and Effects of COVID-19

What’s to Come: Congress has passed a new round of relief, including additional Paycheck Protection Program funding. In addition to providing relief package analysis, we plan to share learnings from financial services clients as they work their way through the crisis and prepare for the post-pandemic environment. Also, the new presidential administration will surely bring regulatory changes that will impact clients in the financial services sector.

The pandemic caused a massive wave of financial distress to businesses large and small, which will likely consume bankruptcy courts for years to come. Examples of our content on restructuring issues included:

• Restructuring in the Time of Coronavirus
• Overview of Managing Customer Relationships in Troubled Times
• Bankruptcy Asset Sales: A Primer
• Hospital and Health Care Provider Bankruptcies: Navigating Restructuring Options in the Age of COVID-19

What’s to Come: As the economic turmoil from the pandemic continues to result in business bankruptcies and restructurings, we will keep providing timely analysis of trends and issues.

With COVID-19 disrupting supply chains throughout the world, enforcement of contracts and the applicability of force majeure provisions were critical topics for many clients from the start of the pandemic. Examples of our coverage included:

• Your Contracts in a Coronavirus World
• Open COVID Pledge and Free Licensing Opportunities: Issues to Consider Before Accepting
• Best Practice With Notices for Force Majeure Events
• Best Practices for Supply Chain Management in the Age of COVID-19
• COVID-19 Litigation Podcast Series: Force Majeure Provisions During the COVID-19 Pandemic

What’s to Come: Businesses continue to implement lessons learned from the crisis in revising their contract templates and processes. Force majeure, business continuity/disaster recovery, and financial stability provisions will remain a focus for all parties, as suppliers and purchasers aim to improve their risk management efforts. Troutman Pepper’s leading Commercial Contracting and Business Litigation practices will continue providing analysis of these critical issues.

The pandemic created severe disruption to the construction and real estate industries, with government mandates forcing halts to projects and waivers for others, as well as a multitude of issues related to supply chain, employee safety, construction disputes, defaults and workouts in loan documents, leases and other contracts, and a host of other issues. Examples of our content included:

• COVID-19 Construction Delay Claims Presentation
• Subtle (and Not So Subtle) Effects of COVID-19 on the Construction Industry
• International Arbitration Experts Discuss the Impact of COVID-19 on Arbitration in 2020 and Beyond
• COVID-19 Issues Podcast: Reopening Commercial Buildings

What’s to Come: The shift to remote working — and the economic hit suffered by many businesses that own, lease, or finance commercial real estate — continue to roil the real estate sector. We expect to explore upcoming prospects for numerous real estate asset classes, including a focus on leases, changes to operating expenses, as well as real estate litigation. We also will continue to report and advise on how the pandemic is impacting construction contracting, dispute resolution, procurement/supply chain, and other issues.

The pandemic has had an outsized impact on consumer credit and the businesses that provide consumer financial services, including ever-changing rules and regulations related to evictions and foreclosures. Examples of our content involving this important industry sector included:

• Impact Tracker – Foreclosure Laws and Landlord Right to Evict
• New York Continues Suspension of Medical and Student Debt Collections Until 2021
• National Apartment Association Claims Nationwide Foreclosure Freeze Is Unconstitutional
• Defending Collection Disputes in the COVID-19 and Economic Downturn Climate
• COVID-19 Headlines FTC’s “Green Lights & Red Flags”

What’s to Come: The economic impact of the pandemic as a whole, particularly the consumer finance sector, will continue for the foreseeable future. Our Consumer Financial Services team started producing a weekly roundup of COVID-related developments at the onset of the pandemic, which are posted in the COVID-19 Resource Center and the Consumer Financial Services Law Monitor, the practice group’s blog. As noted above, this team also developed a tracker that monitors changes in federal and state laws dealing with foreclosure and eviction processes.

Corporate governance, disclosure obligations, material adverse-effect provisions in transaction documents, government regulations compliance, and government relief program participation were key COVID-19-related corporate issues throughout the pandemic. Examples included:

• Material Adverse Effects in the Onslaught of the Coronavirus
• SEC Releases COVID-19 Disclosure Guidance for Public Companies
• Seven Considerations for Stock Buyback Programs in the Era of COVID-19
• Shots Fired: Recent Claims to Terminate M&A Deals Over COVID-19 MAEs
• SBA Issues Long-Awaited Guidance on Change of Ownership Transactions Involving PPP Loan Borrowers

What’s to Come: Challenges we expect to continue in the new year arise from the effects of a resurgent virus on the economy and markets, how quickly vaccines can be distributed, and the impact of the next round of government stimulus programs. Also, the new administration in Washington, D.C. likely will affect changes in the regulatory and compliance landscape.

Cybersecurity and data privacy challenges presented by remote working, increased number of cyber threats, and compliance with privacy protection laws were critical issues for clients throughout the pandemic. Examples included:

• Cybersecurity and Privacy Issues to Consider in Early Stages of COVID-19 Outbreak
• U.S. and U.K. Agencies Warn of Increased COVID-19 Related Cyber Threats
• New Cyber Threat Warnings and Guidance Issued for Health Care Entities Conducting COVID-19 Research
• CISA Releases COVID-19 Recovery Tabletop Exercise Package
• FDA Launches Digital Center of Excellence and ONC Updates HIPAA Security Risk Assessment Tool

What’s to Come: Troutman Pepper’s Cybersecurity, Information Governance, and Privacy Group regularly monitors and advises on privacy and cybersecurity-related developments. As we reflect on 2020 and look toward 2021, we anticipate privacy and cybersecurity to continue to play a crucial role in how business leaders navigate next year’s challenges, such as those relating to legislative and regulatory uncertainties in the California Privacy Rights Act (CPRA), federal privacy legislation, and information security. For the latest updates on cybersecurity and privacy, be sure to check out the group’s insights and posts in Troutman Pepper’s Consumer Financial Services Law Monitor.

Government regulatory actions assisting the essential energy sector, while also clarifying environmental compliance obligations across industry sectors, were significant areas of interest to clients during the pandemic. Examples included:

• Environmental Compliance in the Wake of the Coronavirus
• COVID-19 and the Renewable Energy Supply Chain
• Update on FERC’s COVID-19 Response
• State Opposition to EPA’s COVID-19 Enforcement Discretion Policy Increases as AGs File Suit
• After the Stay-At-Home Order: Water Management Best Practices for Re-Opening Buildings

What’s to Come: Our Energy and Environmental and Natural Resources teams regularly monitor and advise on regulatory developments impacting our clients. For our latest insights, peruse our Energy group’s Washington Energy Report, Pipelaws, and Renewable Energy Insights blogs, as well as our Environmental and Natural Resources group’s Environmental Law & Policy Monitor.

Relief programs — such as the Paycheck Protection Program, Main Street Lending Program, and other aspects of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) — were hot topics, particularly as businesses grappled with the intricacies of these programs early in the pandemic. Examples of our most-visited content in this area included:

• Overview of Coronavirus Aid, Relief, and Economic Security Act (CARES Act) Paycheck Protection Program
• Revised Summary of CARES Act and FFCRA Tax Credit and Payroll Tax Relief
• Industry and Legal Perspectives on the Main Street Lending Program
• New SBA Questionnaires Ask PPP Borrowers of $2M or More to Justify Economic Need

What’s to Come: Congress has passed a new round of relief programs, including renewing the Paycheck Protection Program. Our attorneys and our Troutman Pepper Strategies colleagues continue to closely monitor the implementation of these programs and any subsequent government action. As such, you can count on us for up-to-date advice on how to comply with and maximize opportunities from any relief programs.

Health care providers and life sciences companies have been on the front lines fighting the pandemic from the start. From liability immunity measures to the expansion of telemedicine, businesses and organizations in the health care and life sciences sector face a daunting array of legal issues. Examples of our content included:

• The COVID-19 Crisis and the Expansion of Telehealth Services
• HHS Issues Advisory Opinion Clarifying PREP Act Immunity
• It’s All Hands on Deck in Prosecuting COVID-19 Fraud
• Fraud Emerges as Telemedicine Surges: Compliance Guidance for Telemedicine Providers
• NY Rolls Back Health Care Providers’ COVID-19 Immunity Protections

What’s to Come: Our task force created an FAQ document reviewing many of the key issues confronting health care providers, employers, and others as vaccine distribution begins across the country and the world. Specifically for nursing homes and other long-term care providers, we developed an impact tracker to monitor federal and state orders and guidance documents concerning operations, emergency measures, and partial immunity. We will continue to cover these and other critical issues as we enter 2021.

Insurance coverage issues and related disputes were critical to many clients. Examples of our content included:

• The Key Coverage Issues Regarding Business Interruption From COVID-19
• PA Introduces Legislation That Would Rewrite Business Interruption Insurance Policies to Cover COVID-19 Losses
• D&O Liability Coverage For COVID-19 Issues
• Whiplash for Insurers in Pennsylvania on COVID-19 Coverage Issues
• D&O Claims Grow Amidst the Coronavirus

What’s to Come: The insurance sector will continue to feel the impact of COVID-19 for years to come as insurers manage claims and their operations in the post-pandemic environment. In response, we will keep listening to our clients’ experiences and provide timely and informative analysis of this shifting landscape.

Our content on IP issues concentrated on government measures addressing delays in patent, trademark, and copyright applications, as well as issues involving the Open COVID Pledge and protecting intellectual property during the pandemic. Examples included:

• USPTO Extends Certain Patent Deadlines to Address COVID-19 Delays
• Open COVID Pledge and Free Licensing Opportunities: Issues to Consider Before Accepting
• Compulsory IP Licenses for COVID-19 Relief: Beyond the Defense Protection Act
• Enforcing IP in a Pandemic: Considerations, Risks, and Strategies

What’s to Come: The rapid discovery and production of COVID-19 vaccines highlighted the importance of IP rights in the development of innovative treatments and therapies. Controversy over these rights and their enforcement likely will continue as a focus for quite some time.

Issues associated with moving to remote work and returning to work, helping employees cope with the sudden changes wrought by the pandemic, and compliance with changing government policies and guidance dominated employers’ concerns throughout the pandemic. Some of our content concerning those issues is listed in the Reopening/Return to Work section. Additional content included:

• Employer Guidance on Sending Workers Home and Implementing Remote Work Policies: Coronavirus Edition
• COVID-19 Resource Guide for Human Resources Professionals: Action Items and Implementation Guidelines Relating to Employee Benefit Plans
• Return to Work: Questions All Employers Should Ask Before Reopening
• Employers’ Top 7 Coronavirus Data Collection Questions
• How to Free Up Access to Employer Assets and/or Ease Employee Access to Vested Benefits During COVID-19
• Employee Benefit Considerations in the COVID-19 Era – What You Need to Know for 2021

What’s to Come: Issues related to vaccines, closing/reopening facilities, navigating remote working and adapted operations, and COVID-related impacts on employee benefits plans and executive compensation will remain critical concerns in 2021. The Biden administration also will likely enact regulatory changes, and the new stimulus package passed by Congress likely will bring new issues for employers to address.

Liability limits, disputes over failed business transactions, securities fraud and shareholder claims, and how to hold trials, arbitrations, and depositions during a global pandemic all exemplified key issues for our clients. Examples of our content included:

• COVID-19 Litigation Podcast Series: Liability Issues for Open Businesses During the Crisis
• Shots Fired: Recent Claims to Terminate M&A Deals Over COVID-19 MAEs
• International Arbitration Experts Discuss the Impact of COVID-19 on Arbitration in 2020 and Beyond
• Virtual Trials Are No Longer Just a Remote Possibility
• Changes to Target’s Business Prompted by COVID-19 Pandemic Breached Ordinary Course Covenant, Permitting Buyer to Escape Deal

What’s to Come: We expect 2021 to be a busy year on the litigation front. Among other issues, force majeure and MAE provisions will continue to be tested; a serious backlog in trials due to the remote-only environment in many jurisdictions will likely frustrate plaintiffs, defendants, and the courts; and securities and D&O claims will likely increase.

Mandatory closures also were a hot topic early in the pandemic, and are again as the virus resurges across the country. In addition to advice on compliance with closure orders, our content on how businesses should approach reopening facilities and returning employees to work was widely visited. As such, we have devoted a section of our Resource Center to focus specifically on The Next Normal — including how to adapt to a post-pandemic environment. Examples included:

• When the COVID-19 Vaccine Arrives, Will Your Business Be Ready?
• Navigating Adapted Operations Advisory Series – Lessons Gained from Workplace Adjustments for COVID-19
• Too Close for Comfort: CDC’s Latest Guidance Significantly Expands the Definition of “Close Contact”
• COVID-19 Resource Guide for Human Resources Professionals: Employee Benefits Considerations for Reopening in 2020
• COVID-19 Issues Podcast: Reopening Commercial Buildings

What’s to Come: As vaccine distribution begins across the country, employers, health care facilities, frontline workers, schools, and others will grapple with a wide range of legal issues. In response, our COVID-19 Task Force developed a list of FAQs, which we continuously update as recovery from the pandemic continues. We also will keep advising on facility, employment, benefits, and other issues continuously challenging businesses in the coming year.

COVID-related tax issues we reviewed include tax aspects of the CARES Act and other government responses to the pandemic, tax strategies in a time of lower valuations, and estate planning issues. Examples included:

• Tax Strategies While Valuations Are Reduced
• Employee Retention Credit and Payroll Tax Deferral Under Families First Coronavirus Response Act
• Significant Planning Opportunities Available for Carryback of NOLs Under the CARES Act
• Revised Summary of CARES Act and FFCRA Tax Credit and Payroll Tax Relief
• Estate Planning After the Pandemic

What’s to Come: Tax policies will likely change given the election results (and may change more or less dramatically depending on the pending Senate election results), but as always, the details will matter. Troutman Pepper and our Troutman Pepper Strategies colleagues will continue to watch these issues closely.

Price-gouging, fraud, insider trading, antitrust, securities enforcement, and a host of other white-collar litigation and investigation issues increased throughout the pandemic. Examples of our content included:

• COVID-19 Price Gouging Prevention Act May Give FTC and State AGs Needed Enforcement Powers
• Learning from the Past to Avoid Fraud in COVID-19 and its Aftermath
• PLI inSecurities Podcast: Episode Thirteen – Prosecuting Fraud in the Time of COVID-19
• SEC Expands Scope of COVID-19-Related Enforcement Actions with Penalty Against Cheesecake Factory for Misleading Investors

What’s to Come: In addition to an increase in civil litigation alleging fraud and other white-collar claims associated with the pandemic, we expect the Biden administration to renew criminal investigations and enforcement actions in several areas, including securities/financial fraud, antitrust, health care and life sciences, and environmental.