As the wave of reopening orders sweeps across the country, businesses see a light at the end of the tunnel. That light, however, in many instances is still yellow, and may be so for some time to come. Serious restrictions continue to hamper the habitual functioning of America’s businesses, customers have dwindling cash to pay for goods, supplies are restricted or cut, and social distancing practices and protocols reduce productivity. Companies, therefore, continue to take a closer look at their contracts to determine their rights, including whether force majeure and other provisions may still be invoked.

This article is set forth in three parts. First, it describes general considerations in deciding whether and how to invoke force majeure, encouraging contracting parties to take a holistic view of the entire contractual relationship. Second, the article addresses best practices in drafting force majeure notices, including general points to consider, what form a notice should take, and what to include in the notice. This portion of the article includes a draft template that can be tailored to the specific business and legal context. Third, this article describes general notices, a tool often used in construction contracts, as an alternative to specifically addressing force majeure. This section recognizes that there are often instances in which other contractual remedies are more attractive than force majeure.

General Considerations

When drafting a notice related to a force majeure event, it is important to keep in mind a few general themes, including the objectives, contract terms, an understanding of the force majeure event, the business relationship, and, as always, the potential for litigation.

• Objectives. It is imperative to determine the objective that the force majeure notice will serve. What are you trying to accomplish with the force majeure notice? Is an extension of time sought? Is the recovery of prolongation costs in addition to schedule relief needed? While many have knee-jerk reactions to serve a notice under the contractual force majeure provision the instant an unforeseen event impacting performance occurs, it is critical to make sure the objective of the notice is clear before sending. Keep in mind that typical force majeure provisions may only offer an extension of time to perform. There may be, however, certain circumstances in which invoking force majeure is not the best route to accomplish the objective, particularly when other contractual remedies afford more practical or attractive solutions to meet your objectives.
• Contract terms. Force majeure notices are contractually driven. The form and contents of the notice are governed by the force majeure provision in the contract. However, after establishing objectives, what if the remedies available in the force majeure provision do not match those objectives? Does the contract contain other clauses that provide a better remedy more in line with your objectives? Knowing all of the nuances of the contract becomes critical to determining your course of action. It is also crucial to consider the contractual options of your contract opponent. Will you trigger a reason to terminate or withhold payment? Will you trigger a claim of anticipatory breach? Be familiar with all contractual terms before drafting any force majeure notice.
• Understand the impacts caused by the force majeure event. This may seem obvious, but it is necessary to consider the possible scenarios occurring at the beginning of the force majeure event, and afterwards as well. There have been numerous federal and state shutdown and stay-at-home orders issued, and now we are beginning to see reopening orders being implemented. As the shutdown and stay-at-home orders are lifted, there will be a “ramp up” period in which businesses will open, but not be operating at full capacity. Will this ramp-up period, when an emergency declaration is no longer in place, still impact one’s ability to perform under the contract? Moreover, what impact will social distancing have on your business for the weeks or months after the technical force majeure event ends? Offices may operate at half-staff, stores may limit the number of guests allowed at a time, and factories may limit the number of staff at the facility. Considering all of the possible impacts of the force majeure event will be key in determining what to include in a notice.
• The business relationship. It is always important to strictly abide by contractual notice requirements. However, the strength of your business relationship can impact how your notice is received. A longstanding business partner may accept a simple contract-compliant notice that generally explains the delays and increased costs due to the force majeure event, while other more litigious business partners may require a more detailed explanation. There may be other outside laws, regulations or considerations that impact the force majeure notice, including whether there are administrative notice requirements, whether the parties conduct other business together, and whether the force majeure event has impacted that business as well. While it is important to understand the contract between the parties in drafting a force majeure notice, it is just as important to have a complete understanding of the business relationship and the people involved.
• The potential for litigation. As always, keep in mind that there could be litigation resulting from the force majeure event. Accordingly, the notice should be drafted as if giving notice for any other legal purpose, with a long-term view in mind. Be flexible with the notice, and avoid limiting rights and remedies to prevent hamstringing legal positions down the road. Remember, courts have held that “[t]he failure to give proper notice is fatal to a defense based upon a force majeure clause requiring notice.” Sabine Corp. v. ONG Western, Inc., 725 F. Supp. 1157, 1168-69 (W.D. Okla. 1989) (dismissing defendant’s force majeure affirmative defense for failure to provide sufficient and proper notice of invoking force majeure).

With that background, here are some best practices when drafting force majeure notices.

Drafting Force Majeure Notices

Form and Service of Notice

When issuing either a force majeure notice or more general notice of delay, there are a few practical concepts to keep in mind regarding what form the notice should take. These three tips will ensure your notice is proper and serves its intended purpose.

• Comply with the contract terms. The general form of the notice will be guided by the terms of the contractual force majeure provision. This will include the means of communicating the notice, the way in which the notice is to be served, and the time in which the notice must be served. Parties typically must strictly adhere to the requirements set forth in notice provisions to be effective.
• If impossible, then substantially comply. There may be instances, however, when strict compliance is impossible. For example, if personal service is required, governmental restrictions limiting business operation may prevent a party from providing personal service within the time period allotted. Under these circumstances, substantial compliance may excuse failure to achieve literal compliance with the contract terms. Courts have held that a reasonable effort to provide notice as soon as possible may constitute valid notice, even if it is not in strict compliance with the contractual terms. See Toyomenka Pac. Petroleum, Inc. v. Hess Oil Virgin Islands Corp., 771 F. Supp. 63, 68 (S.D.N.Y. 1991) (granting summary judgment and holding that six-day delay in providing notice did not prevent defendant from force majeure defense because defendant made reasonable effort to give notice as soon as possible).
• Keep and maintain documentation of all notice activities. Where strict compliance is impossible to achieve, keep careful records of all attempts to serve and provide notice. Complete records will be critical to combat later arguments that a notice was ineffective because it was not served in compliance with the contract.

Substance of a Force Majeure Notice

After identifying your objectives, understanding the event, analyzing the business relationship, and reviewing your contract, you decide that invoking force majeure is the best option. Each of the below points should be included in your force majeure notice. Including these points should ensure your force majeure notice will constitute valid notice under your contract.

• Identify the force majeure event. Regardless of how obvious or apparent the force majeure event may be, the force majeure event must be specifically identified in the notice. It is common for contractual force majeure provisions to specifically reference events like government acts, pandemics, epidemics or health emergencies. Some force majeure provisions are more general, and may only reference events like “acts of God.” If the event does not fall squarely within an enumerated event covered by the force majeure clause, mirror the language of the force majeure clause when explaining the event. If intent on invoking the force majeure clause, cite specifically to the section and language of the force majeure provision in the contract when detailing the event. Keep in mind, however, you should do this only if you have gone through the contract and concluded that invoking force majeure is the best option. If other, better remedies are available in the contract, then including reference to the specific force majeure section may limit your potential rights and remedies during a litigation. Thus, you should include a citation to the specific force majeure clause only if force majeure is the desired course and you do not plan to ever seek additional forms of relief. Otherwise, as discussed further below, your notice should not include reference to the force majeure provision to avoid limiting future rights.
• Explain how the force majeure event impacts performance. The notice should provide an explanation of how the force majeure event is preventing performance of contractual obligations and how long it is expected to impact performance. Reference sections in the contract that are specifically impacted, such as clauses detailing work, deliverables or services to be provided. Characterize and quantify the loss of time, ability or money suffered as a result of the force majeure event. Include attempts taken to mitigate, and, if possible, consider providing supporting documentation. Keep in mind, however, that if there is an expected insurance or government investigation into the force majeure event, providing documentation such as photos should only be done if absolutely necessary.
• Identify the relief the force majeure notice seeks. Here is where knowing your contract and having clear goals come into play. Are you seeking an extension of time to perform? Are you seeking termination of the contract? While the available remedies may be contract-dependent, the notice should include the relief sought.
• Include adequate assurances. In order to avoid any claims for anticipatory breach, it may be necessary to include adequate assurances of performance once the force majeure event subsides. Include how and when performance will be fulfilled once possible. This is especially important if only a suspension of performance is sought, and not termination of the contract. Note that updates will be given if circumstances change, and keep the possibility of continuing the contractual relationship if feasible. If there are no alternatives and termination is sought, notify and memorialize any attempts made to perform, and be clear in noting the force majeure event’s impact on the ability to perform.
• Do not limit rights. Circumstances change. Litigation may arise. The notice may be an exhibit to a pleading. Be sure to reserve all rights and remedies, both contractually and at law, in the notice. In addition, consider whether you might be able to rely on the common law doctrines of impossibility, impracticability or frustration of purpose, and make reference to each in your notice to ensure they are not waived.
• Supplement as more information becomes available. Keep the lines of communication open. Advise that regular updates will be given. Show good faith in the attempts to perform and mitigate damages. This will go a long way for the business relationship and in potential litigation, especially during times of uncertainty.

Force Majeure Notice Template

To go along with the best practices, a template force majeure notice that can be used to invoke a force majeure provision is available here. It is consistent with the guidance and best practices above. It should be tailored depending on the terms of the contract, the relationship of the parties, the type of force majeure event, and the ultimate goals in issuing a force majeure notice. Keep in mind, however, that while the template serves as a guiding framework, the notice must ultimately be consistent with the terms of the contractual requirements and the law of the relevant jurisdiction.

General Notice Instead of Force Majeure Notice

In certain circumstances, particularly in construction contracts, the remedies afforded in the force majeure clause may not align with the objectives for issuing a force majeure notice. Moreover, there may be other provisions that provide better relief than force majeure. One example would be if the force majeure provision only affords an extension of time to perform while other provisions may permit the recovery of lost profits or other prolongation costs. If there is any question regarding which provision should apply, a broader, more general notice may be more practicable in order to avoid limiting available rights and remedies should a dispute arise. Here are some key points to consider when drafting a general notice of delay as opposed to a force majeure notice.

• Identify the event. Similar to a force majeure notice, the general notice should identify the event causing the delay or hindering performance. It should not call the event a “force majeure event” or reference the specific force majeure section of the contract. Doing so may give the appearance of simply invoking the force majeure clause instead of a more beneficial clause in the contract. The notice should instead establish the date when the event impacting performance began and provide dates when it is expected that the event will subside or cease interference with performance.
• Explain how the event impacts performance. Provide a similar explanation as to how the event is preventing performance. Provide assurances that, once possible, performance under the contract will be completed.
• Define the relief sought. Explain the relief sought as a result of the event. When calculating or determining the relief sought, be sure to take into account all relief sought by any “downstream” entities reporting to you as well. For example, if a general contractor needs 50 additional days to complete a task due to an unforeseen event, and a subcontractor informed the general contractor that it will need an extra 20 days to perform, the general contractor, in putting together its notice of delay, should request 70 days to encompass what will be needed for the project to be completed.
• Do not limit rights or remedies. When it is unclear which clause should be invoked, do not limit your remedies to those in the force majeure clause. Do not cite to a specific provision for which you are providing notice when providing a general notice of delay. Because the goal is to provide a general notice for all possible applicable provisions offering relief in the contract, citing to a specific provision may waive the future exercise of other clauses. To simultaneously provide contractual notice of delay without citing to a specific provision in the contract, explain that the notice will be “in satisfaction of all notice requirements in the contract.” Finally, include a reservation of rights and remedies both within the contract and at law.
• Provide “downstream” notices “upstream.” Particularly in construction, the entire supply chain, including suppliers, subcontractors and general contractors, may be impacted by a similar event. For anyone who has to pass notice “upstream,” it is imperative to provide any and all notices received from “downstream” parties. For example, a supplier may provide a notice to a subcontractor, who also provides notice to the general contractor. In order to give the property owner or developer a more complete understanding of the impact of the event, and to ensure you provide notice for all of the relief sought, it is critical to incorporate notices received from all subcontractors and suppliers in your upstream notice to the owner or developer.

Authors: 
Evelyn Small Traub, Partner, Troutman Sanders 
James E. Earle, Partner, Troutman Sanders 
Jessica Hajjar

On May 27, 2020, the DOL published final rules that provide a new safe harbor method for the electronic delivery of ERISA-required notices (the “Final Rules”).

The Final Rules apply to any participant, beneficiary, or alternate payee who provides the plan sponsor or administrator with an email address or smartphone number. Plan sponsors and administrators may deliver required ERISA notices by a combination of (i) providing the covered individuals with an electronic “notice of internet availability” that identifies a website where the ERISA notice is posted, and (ii) posting the notice on the website (i.e., “notice and access”). For many regular annual required notices, the “notice of internet availability” must be furnished only once per year. Alternatively, covered documents may be delivered directly to the covered individual’s email address. The rules apply only to required notices for 401(k) and other tax-qualified retirement plans, and do not apply to group medical or other health and welfare plans.

The new safe harbor is a small but welcomed step forward in reducing some of the administrative burdens related to tax-qualified retirement plans while also recognizing the wired world in which we live. Before using the new safe harbor, the plan administrator must notify participants of the new delivery method.

Background

Plan sponsors and administrators of 401(k) and other tax-qualified retirement plans must comply with numerous notice requirements under the Employee Retirement Income Security Act of 1974 (“ERISA”). Participants and beneficiaries must receive copies of summary plan descriptions, summaries of material modifications, summary annual reports, various investment disclosures, plan statements, and numerous other required notices.

In 2002, the Department of Labor (“DOL”) approved two “safe-harbor” methods to electronically deliver these notices. One easy-to-use safe harbor applies to employees who are “wired at work.” The other safe harbor applies to anyone else in the plan – i.e., employees who are not “wired at work,” former employees with accounts, beneficiaries, and alternate payees. These individuals must provide affirmative consent to electronic delivery.

These safe harbors have proved helpful and remain in effect. However, with the rapid changes in electronic options, they may have become a cumbersome way for employers to deliver notices. In October 2019, the DOL proposed a new, additional safe harbor that follows a “notice and access” electronic delivery model intended to provide a more convenient and efficient method for furnishing required ERISA notices, especially for individuals who do not qualify for the 2002 “wired at work” safe harbor. The finalized rules are substantially similar to the proposed rules, but some changes have been incorporated in response to concerns raised by commenters, as further described below.

New Electronic Delivery Safe Harbor

The Final Rules create a new safe harbor allowing ERISA plans to provide plan participants, beneficiaries and other individuals with a notice stating that the required plan disclosures will be made available on a website or to provide required disclosures directly by email (the “safe harbor”). However, a plan administrator who wishes to continue to rely on the existing 2002 safe harbor rules for e-delivery or continue to deliver by hand or first-class mail may continue to do so.

The Final Rules utilize a “notice and access” structure for furnishing ERISA required disclosures electronically. Under this structure, a plan administrator notifies the “covered individuals” of the availability of the documents with an electronic “notice of internet availability” (the “notice”) and then posts the required disclosures on a website. The requirement and parameters of this process are discussed below. The direct disclosure by email is also discussed below.

Effective Date

The Final Rules are effective on July 27, 2020. The DOL has stated that it will not take any enforcement action against a plan administrator that relies on the new safe harbor before the effective date in connection with the Federal government’s broader effort to respond to COVID-19.

Getting Started:

Initial Paper Notification of Default Electronic Delivery and Right to Opt Out

A plan administrator that decides to utilize the new safe harbor must send an initial notification on paper that some or all of the covered documents will be e-delivered to the participant’s electronic address on file. Additionally, the initial notification must alert the covered individual of his or her right to receive the covered documents in paper and that he or she may opt out of e-delivery, including the procedures for exercising such rights.

If the plan is currently using the 2002 safe harbor and wishes to adopt the new safe harbor, the plan administrator must send a one-time notification to each existing employee (including those who provided their affirmative consent under the 2002 safe harbor) notifying them of the plan’s intent to rely on the new safe harbor. Thereafter, the administrator must send this notification to each new employee who would be covered by the safe harbor.

Details of the New Safe Harbor

Covered Individuals

Under the Final Rules a “covered individual” is a participant, beneficiary or alternate payee for whom the employer, sponsor or plan administrator has an electronic address (e.g. email address, smartphone number, etc.). The Final Rules require, a condition to use the safe harbor, that the administrator receive an electronic address or number with which to communicate with the covered individual. This may include a personal or work email address. Because technology changes so often, the Final Rules do not limit the type of device a participant or beneficiary must have to be covered by the safe harbor.

Employers may use a work email address that it assigns to an employee for employment related purposes other than solely the delivery of covered documents under the new safe harbor.

Covered Documents

A plan administrator may use the safe harbor only for pension benefit plans, which includes 401(k) and other tax-qualified retirement plans. The safe harbor covers documents that are required to be provided to participants and beneficiaries under Title I of ERISA (“covered documents”). The definition of covered documents includes documents that must be sent as a result of the passage time – such as a summary annual report – and documents required as a result of a specific triggering event – such as a summary of material modification (SMM), blackout notice or claim denial. The plan administrator has discretion to only apply the safe harbor to certain covered documents.

The Final Rules do not apply to employee welfare plans. However, the DOL has reserved the right to expand the safe harbor in the future.

Timing of Notice of Internet Availability

The Final Rules require the plan administrator to send the notice to the covered individuals for a covered document at the time it becomes available. For example, if a plan is required to send six different covered documents, such as four quarterly benefit statements, a black out notice and a new Summary of Material Modifications (SMM) to its covered individuals over the course of the plan year, the plan administrator would have to send six notices in order to comply with the safe harbor.

However, a plan administrator may send a single combined annual notice for all or some of the following documents:

• Summary plan descriptions (SPDs);

• SMMs (after initial notice of availability);

• Any covered document that must be furnished at least annually, as opposed to at the time of a specific event, such as:

• Summary annual reports;

• Annual funding notices;

• Investment-related disclosures (identifying information, performance data, benchmarks, fee information, etc.);

• Qualified default investment alternative notices;

• Pension benefit statements; and

• Any IRS required notices if authorized by the IRS to be delivered electronically by means of a combined notice.

If the plan administrator uses a combined notice, the timing requirement is satisfied if the combined notice is furnished each plan year. If the combined notice was furnished in the prior plan year, then the combined notice must be sent no later than 14 months following the date the prior plan year’s notice was sent.

Additionally, the Final Rules require the plan administrator to make the covered document available on the website by the covered document’s ERISA deadline.

Content of Notice of Internet Availability

The notice of internet availability must contain the following information:

• A prominent statement (such as a title, legend or subject line) that reads, “Disclosure About Your Retirement Plan;”

• A statement that reads, “Important information about your retirement plan is available at the website address below. Please review this information;”

• An identification of the covered document by name, a brief description of the covered document and why it is important (if not evident from the name);

• A specific website address that provides ready access to the covered document or in a combined notice covered documents (e.g., a direct link to the document or a log-in page that provides a link to the document);

• A statement of the right to request and obtain a paper version of the covered document, free of charge, and an explanation of how to exercise this right;

• A cautionary statement that the covered document is not required to be available on the website for more than a year or, if later, after it is superseded by a subsequent version;

• A statement of the right to opt out of receiving covered documents electronically, and an explanation of how to exercise this right; and

• A telephone number to contact the administrator or other designated representative of the plan.

Form and Manner of Providing the Notice of Internet Availability

Like most participant disclosures under ERISA, the DOL expects the notice to be clear and concise in explaining its content and importance. In order to satisfy the safe harbor, the notice must:

• Be sent electronically to the covered individual’s electronic address;

• Contain only the required content, though pictures, logos or similar design elements may be included, so long as the design is not inaccurate or misleading and the required content is clear;

• Be furnished separately from any other documents or disclosures, including those required by ERISA, sent to the covered individual (unless the exception for combined notices applies); and

• Be written in a manner calculated to be understood by the average plan participant.

• For this purpose, the DOL removed the requirement included in the proposed rules that the notices meet an objective general readability standard. The DOL will, however, continue to study ways to improve readability of the required notices.

Website

The plan administrator is also required to establish and maintain a website (or other electronic-based repository for information such as a mobile app) where covered individuals can easily access the covered documents. The administrator may delegate some responsibilities associated with the website to third party service providers. But, the administrator, as a plan fiduciary, must prudently select and monitor those service providers. Additionally, the administrator must take measures reasonably calculated to ensure the website meets certain requirements. For example, covered documents posted on the website must:

• Be available on the website by the applicable ERISA deadline for furnishing the covered document;

• Remain available on the website at least a year or if later, until it is superseded by a later version;

• Be presented in a manner calculated to be understood by the average plan participant;

• Be available in a widely-used format suitable for reading online and printing clearly on paper;

• Be searchable electronically by numbers, letters or words so participants can quickly find information about specific issues; and

• Be available in a widely used format that allows the document to be permanently retained electronically (e.g., PDF).

A plan administrator must also take reasonably calculated measures to ensure the website protects the covered individual’s personal information and confidentiality.

Right to Request Paper Copies and Opt Out

The Final Rules require the plan administrator to maintain reasonable procedures to allow a covered individual to request a paper copy of the document free of charge. The Final Rules also require the plan administrator to establish reasonable procedures to give covered individuals the ability to opt out of e-delivery and receive only paper copies of some or all of the covered documents. If a participant decides to opt out, then all future covered documents must be delivered in paper, unless the covered individual decides to opt back into e-delivery.

Severance from Employment with Plan Sponsor

Covered individuals may continue to receive their covered documents by e-delivery even after they separate from employment with the plan sponsor. In such case, the plan administrator must take measures reasonably calculated to ensure the continued accuracy of the covered individual’s electronic address or obtain the covered individual’s new electronic address to ensure the covered individual’s continued access to the covered documents.

Alert About Invalid Electronic Addresses

The Final Rules require the system for furnishing the notice to provide an alert to the administrator in case a covered individual’s electronic address appears to be invalid or otherwise inoperable. The administrator then must take steps to obtain a new, valid electronic address. If the administrator cannot obtain a new valid address, then it must deem the covered individual to have opted out of e-delivery. As a best practice, plan administrators should keep a secondary electronic address for the covered individual on file and send the notice to the secondary address if they are alerted to an invalid or inoperable primary electronic address. The DOL has stated that this requirement is intended to help reduce the number of post-employment “lost participants.”

Temporary Unavailability

The Final Rules require plan administrators to have reasonable procedures in place to ensure that the covered documents are available. However, the Final Rules recognize that technological errors do occur and that they may render the covered documents temporarily unavailable. If the documents do become temporarily unavailable, the plan administrator must take prompt action to get the covered documents back online and available as soon as practicable following the time when the administrator knew or reasonably should have known the documents were unavailable.

Alternative to “Notice and Access” Method

As an alternative to the safe harbor described above, the administrator can send a covered document directly to a covered individual’s email address no later than the date the document must otherwise be furnished. The email must use a subject line that reads: “Disclosure About Your Retirement Plan” and include much of the same content as the notice of internet availability described above, such as the name of the document (including a brief description, if needed), a statement of the right to receive a paper copy and/or opt out of electronic delivery, and a contact phone number. The document can be delivered in the body of the email or as an attachment. The document must meet the same standards of readability and other requirements for documents that are posted on the website described above.

If you have questions about the new electronic distribution rules, or if you would like to implement the new delivery methods, please contact an attorney in the Troutman Sanders Employee Benefits and Executive Compensation Practice.

Published in Pratt’s Journal of Bankruptcy Law (Volume 16, Number 7, October 2020).

The current economic stress caused by the COVID-19 pandemic is likely to continue for the foreseeable future. The loss of revenue and income by companies and individuals has already severely reduced tax revenue for state and local governments while at the same time many of these same governmental entities are expending vast sums fighting the pandemic. These increased expenditures are not likely to be offset by tax revenue. Quite the opposite appears true – increased costs with decreasing revenue will lead to large budget deficits. Absent aid from the Federal Government, states will be left with limited resources to assist municipalities facing budgetary shortfalls.

While states are not eligible for bankruptcy protection, municipal entities in certain states can commence proceedings under Chapter 9 of the United States Bankruptcy Code. A municipality must be authorized by state law to commence a Chapter 9 case. Some states, such as Georgia, explicitly prohibit such filings. While other states restrict the types of entities that can file, differentiating between water districts, school districts, healthcare districts, counties, municipal corporations and other public agencies. Some states require advance notice and approval of any filing and may even withhold permission to file. Thus, applicable state law must be reviewed carefully by both creditors and municipalities when assessing whether a municipal entity can seek Chapter 9 protection. 

If a municipality is not able to file for Chapter 9, an out of court restructuring may have to be pursued, such as a refinancing or extension of debt obligations, tender offers or exchanges or other negotiated resolutions. In certain states, financial boards or administrators may be appointed to oversee the finances of the municipality. States have a complex tangle of laws and regulations relating to municipalities and must be thoroughly reviewed when considering the possible outcomes of a municipal distress situation.

Below are frequently asked questions about municipal Chapter 9 bankruptcies. 

What is Chapter 9 of the Bankruptcy Code?

Chapter 9 is part of the Bankruptcy Code that applies only to municipal entities. Chapter 9 also incorporates some, but not all other provisions of the Bankruptcy Code. 

What is considered a municipality for the Bankruptcy Code?

The Bankruptcy Code defines the term “municipality” as a “political subdivision or public agency or instrumentality of a State.” Entities as large as major cities (i.e., Detroit, Vallejo and Harrisburg) along with major counties (i.e., Orange County and Jefferson County) and small public healthcare districts and entities (i.e., West Contra Costa Healthcare District and Suffolk County OTB) have commenced cases under Chapter 9.

Can a municipality be put into Chapter 9 involuntarily?

No. Only a municipality can initiate a Chapter 9 case. 

How is a Chapter 9 case commenced?

Assuming that applicable state law permits the commencement of a case, the municipality must vote to authorize the filing in accordance with its local charter or law. The municipality must file a petition initiating the case and must provide notice of the commencement of the case. Sometimes eligibility to file a case is hotly contested by creditors. However, unlike Chapter 11 debtors, Chapter 9 debtors are not required to file schedules or a statement of financial affairs. Rather, a Chapter 9 debtor is only required to file a list of creditors.

Must a municipality be insolvent to commence a Chapter 9 case?

Yes. Unlike Chapter 11 debtors, a municipality must demonstrate that it is insolvent as of the petition date. A municipality is insolvent if it is (i) generally not paying its debts as they become due unless such debts are the subject of a bona fide dispute, or (ii) unable to pay its debts as they become due. The “generally not paying its debts as they become due” test requires a factual analysis of what payments have been missed and their relation to the municipality’s overall financial position. In determining whether the municipality is unable to pay its debts as they become due, courts look at the cash flow of the municipality rather than using a balance sheet test. The court also will look to the municipality’s expected projected near term fiscal condition.

The municipality must also demonstrate a desire to effect a plan to adjust its debts, and demonstrate one of the following:

(i) creditor agreement at time of filing;

(ii) failure of good faith negotiations;

(iii) negotiations were avoided as impracticable; or

(iv) the municipality reasonably believes a creditor may seek preference.

Can a municipality wind up liquidating?

No. A municipality cannot dissolve or be liquidated in a Chapter 9 proceeding. Applicable state law would govern any such result. 

What protections can a municipality obtain by filing?

The automatic stay comes into effect at the commencement of the case and stays all actions against the municipality. Also, many, but not all, of the provisions of Chapter 11 apply in a Chapter 9 proceeding. 

Must a municipality pay all of its debts in a Chapter 9 case?

No. A municipality can determine which debts (both pre- and post-petition) it will pay as part of the resolution of the case.

What happens to bonds issued by a municipality?

A municipality will not have to make principal and interest payments on bonds during the pendency of its case. However, bonds backed by special revenues, such as receipts from a designated project, may still be paid after the filing. Recent case law related to the Puerto Rico case found that the automatic stay only applied to the application of special revenues to payments of bonds and did not require the debtor to collect the special revenues for such application. Also, the holder of a bond that is backed by special revenues does not have recourse to the municipality.

What is the role of the Bankruptcy Court?

Unlike other bankruptcy cases, the role of the Bankruptcy Court is limited in a Chapter 9 case. The court may not interfere with the day to day operations (i.e., use of property or revenues) of the municipality or its political discourse. The court’s main role is to approve or disapprove a debt adjustment plan and enforce the automatic stay. The court can, with the consent of the parties, facilitate compromises and resolutions of issues. However, the municipality has full discretionary authority to settle matters without court oversight according to a recent decision in the Stockton case.

What happens to retirement plans in a Chapter 9 case?

A municipality has the ability to alter the terms of retirement plans while in bankruptcy. Unlike in a Chapter 11 case, there are no specific provisions relating to retirement and health plans in a Chapter 9 case. This, however, remains a hotly contested issue both legally and politically.

What happens to collective bargaining agreements in a Chapter 9 case?

A municipality has the ability to reject a collective bargaining agreement during its case. As with retirement and health benefits, there is no specific provision in Chapter 9 relating to collective bargaining agreements. However, Supreme Court precedent requires the municipality to engage in good faith negotiations with the union prior to seeking authority to reject the agreement.

Can a municipality reject other contracts in a Chapter 9?

Yes. The municipality has the ability to assume or reject executory contracts as part of its bankruptcy case. However, a lease to a municipality is not treated as an executory contract.

Are the safe harbors still applicable in a Chapter 9 case?

Yes. Counterparties to securities contracts, commodities or forward contracts, repurchase agreements, swaps and master netting agreements may still exercise their rights to liquidate, terminate or accelerate such contract after the commencement of the Chapter 9 case. The definitional requirements for exercising such rights must still be carefully reviewed prior to the exercise of any such rights.

Do I need to file a proof of claim in a Chapter 9 case?

Maybe. The municipality is required to file as list of creditors. If a claim is listed on the schedule, a proof of claim is deemed filed. However, if the claim is not listed or there is a dispute as to amount or status, a proof of claim must be filed.

How is a Chapter 9 case concluded?

As with a Chapter 11 case, the goal of a Chapter 9 case is the filing of a plan for the adjustment of the municipality’s debts. If the plan was not filed with the petition, it must be filed by a date fixed by the court. The court will schedule a hearing to consider confirmation of the plan. Once the plan is confirmed, it is binding on the debtor and all creditors (regardless of whether a claim was filed or deemed filed) and the debtor receives a discharge of all claims as of the date the plan is confirmed.

This article was published in Law360 on April 28, 2020. © Copyright 2020, Portfolio Media, Inc., publisher of Law360. It is republished here with permission.

Nearly three years after the U.S. Supreme Court’s decision in TC Heartland LLC v. Kraft Food Brands LLC,¹ both parties and courts continue to grapple with what it means for a defendant to have a regular and established place of business in a judicial district that is not where a named domestic defendant in a patent infringement case is either incorporated or resides.

In light of this, venue discovery is an invaluable tool that plaintiffs should seek when defending their choice of venue and that defendants may use to successfully bolster their venue challenge. Under either circumstance, a litigant may use venue discovery to establish the necessary factual case on whether (or not) venue is proper in a district.

Patent Venue Background

The Supreme Court issued TC Heartland² in May 2017, holding that venue in a patent infringement lawsuit against a domestic corporation is only proper in a district where the corporation resides (i.e., its state of incorporation) or in a district “where the defendant has committed acts of infringement and has a regular and established place of business.”³

In doing so, the Supreme Court rejected the argument that the patent venue statute, Title 28 of U.S. Code Section 1400(b), incorporates the broader definition of corporate residence contained in the general venue statute, Title 28 of U.S. Code Section 1391(c),⁴ and effectively overturned the U.S. Court of Appeals for the Federal Circuit’s decision in VE Holding Corp. v. Johnson Gas Appliance Co.⁵ that had found that the general venue statute applied in a patent infringement case, such that venue was proper in “any district where there would be personal jurisdiction over the corporate defendant at the time the action is commenced.”⁶

The Supreme Court also confirmed that its prior holding in Fourco Glass Co. v. Transmirra Products Corp.⁷ — that Title 28 of U.S. Code Section 1400(b) “is the sole and exclusive provision controlling venue in patent infringement actions” and is “not to be supplemented by the provisions of 28 U.S.C. § 1391(c)” — still controls today.⁸

Following TC Heartland, the Federal Circuit issued In re: Cray Inc.,⁹ which provided district courts with a framework for assessing venue after TC Heartland and clarified that a defendant’s regular and established place of business, as described in Title 28 of U.S. Code Section 1400(b), must be (1) a physical place in the district; (2) a regular and established place of business; and (3) the “place of the defendant.”¹⁰

Facts supporting (or contradicting) these issues have formed the substance of requests for venue discovery.

When Have Courts Found Venue Discovery Appropriate?

Although TC Heartland did not alter the procedure for challenging venue (i.e., in a motion to dismiss or transfer), it did alter the relevant facts a court may consider in evaluating venue challenges.¹¹ One way parties have attempted to avoid transfer or dismissal for improper venue is by seeking limited discovery on the issue of venue as an alternative to a ruling on the pending motion.

This allows the parties to develop a factual record early on in the case when fact discovery has not necessarily progressed, so the court can more accurately resolve venue challenges. While venue discovery has long been a reasonable request in response to venue challenges,¹² TC Heartland changed the specific kinds of questions asked and information sought through venue discovery.

Courts generally have broad discretion over whether to order venue discovery,¹³ and a court may consider the following facts or issues in granting requests for venue-related discovery post-TC Heartland.

To Address Open Legal Questions

Courts have been willing to allow venue-related discovery shortly after new, precedential developments in patent venue law arise, even in cases where parties have already completed briefing but did not have a chance to consider the new developments.

Several examples occurred in the immediate aftermath of TC Heartland and Cray. In Celgene Corp. v. Hetero Labs Ltd.,¹⁴ for example, the court found venue-related discovery “especially appropriate … because [defendant] moved [to dismiss based on improper venue] before the Federal Circuit issued [In re] Cray.”¹⁵

Other orders that issued shortly after TC Heartland similarly allowed venue discovery in light of the Supreme Court’s then-recent decision.¹⁶

Nearly three years after TC Heartland, these issues continue to evolve. For example, in a recent decision, In re: Google Inc., the Federal Circuit confirmed that the physical presence of Google’s servers were insufficient for purposes of satisfying the place of business requirement under Cray, holding that a place of business “generally requires an employee or agent of the defendant to be conducting business at that place.”¹⁷

In attempting to clarify the place of business requirement, however, the Federal Circuit left open the question of whether a “regular and established place of business will always require the regular presence of a human agent” and whether “a machine could be an ‘agent.’”¹⁸

Because courts continue to resolve unsettled questions and raise additional potential questions, it may be worthwhile to ask for venue-related discovery related to facts that are newly confirmed to establish (or not establish) the required “place of business,” even after briefing on a challenge is technically complete.

To Resolve Specific Factual Disputes

More generally, venue discovery is often appropriate where the party seeking discovery can identify with some specificity the information relevant to venue that discovery may unearth.¹⁹ In St. Croix Surgical Systems LLC v. Cardinal Health Inc.²⁰ for example, the U.S. District Court for the Eastern District of Texas ordered venue-related discovery where the defendant’s claims contrasted with publicly available information.²¹

Specifically, the defendant argued that it was “just a holding company outside of Texas’s jurisdiction” and had no regular and established business in the district, but, in response, the plaintiff presented evidence that the defendant had “both employees and locations throughout Texas.”²²

In light of this contradictory information, and because the defendant had not explained why these employees and locations did not give rise to proper venue, the court ordered venue discovery to assist in resolving the dispute.²³

As another example, in C.R. Bard Inc. v. Angiodynamics Inc., the U.S. District Court for the District of Utah permitted venue discovery to determine whether home offices of the defendant’s sales representatives were sufficient to establish venue.²⁴

The court permitted venue discovery specifically because it had reason to doubt the reliability of a declaration the defendant submitted in support of its motion to dismiss or transfer because it contained information the declarant later admitted was incorrect and left several questions unanswered, including whether sales representatives stored product samples or literature in their homes or conducted product demonstrations in the district.²⁵

The court therefore held that “developing the factual record [was] necessary to resolve [defendant’s] motion.”²⁶ If the briefing for venue challenges raises more questions than it resolves, then asking for venue discovery will allow the parties an additional opportunity to bolster and clarify their positions to provide the court an accurate record to resolve the dispute.

To Investigate Related Corporate Entities

Courts also permit venue-related discovery regarding the relationship between corporate entities to determine whether the regular and established place of business of a defendant’s affiliate, agent, subsidiary or alter ego may be considered the place of the defendant under Cray.

In Cray, the Federal Circuit explained that relevant considerations in determining whether the regular and established place of business is, in fact, the place of the defendant include “whether the defendant owns or leases the place, or exercises other attributes of possession or control over the place.”²⁷ Courts have therefore permitted venue discovery where the party seeking it can properly support its request for further inquiry into that relationship.

The U.S. District Court for the District of Delaware, for instance, permitted venue discovery after finding that (1) the record did not clearly establish whether any entity related to the defendant (e.g., affiliate, agent, subsidiary or alter ego) had a regular and established place of business in the district, and (2) the plaintiff’s request for venue discovery was not frivolous because it provided some evidence that defendant’s subsidiaries were incorporated or had a regular and established place of business in the district.²⁸

The court held that it “should permit venue-related discovery, to allow the adversarial process to aid the court in making a fact-specific decision on a well-developed factual record.”²⁹

In Blitzsafe Texas LLC v. Mitsubishi Electric Corp,³⁰ the Texas district court also permitted venue discovery “because the parties’ dispute over venue turns in part on the degree of control that BMW exercises over BMW-brand dealerships.”³¹ The Blitzsafe court held that “[v]enue discovery with respect to those disputed factual premises” would “facilitate resolution of the venue dispute fully and fairly.”³²

Unsupported allegations regarding corporate separateness or the relationship between corporate entities and one entity’s control over another, however, are unlikely to warrant venue-related discovery.³³ Because a defendant’s related corporate entities may be relevant to determine whether or not venue is appropriate in a district, parties should investigate and seek venue discovery regarding not only the party’s physical presence in a district, but also the affiliates, subsidiaries or agents over which it may exert control.

Under What Circumstances Do Courts Deny Venue Discovery?

As discussed above, in seeking venue-related discovery, a party is more likely to be successful where it can point to specific facts regarding, for example, related corporate entities or the activities of remote employees that are not publicly available or otherwise missing from the record that would be relevant to evaluating proper venue.

In fact, courts frequently deny motions seeking venue discovery where a party fails to allege specific facts supporting its request or otherwise suggesting that venue-related discovery would be fruitful.³⁴

In Novartis Pharmaceuticals Corp. v. Accord Healthcare Inc.,³⁵ for instance, the Delaware district court rejected plaintiff’s contentions regarding a single employee alleged to live and work in the district, because the plaintiff “point[ed] to no facts supporting a reasonable expectation that discovery would lead to evidence sufficient to satisfy any of Cray’s requirements.”³⁶

The plaintiff did not allege, for example, that the defendant stored any of its materials at the Delaware employee’s home, that her home was “owned, controlled, or otherwise established” by the defendant or that the employee’s employment was conditioned on her continued residence in the district.³⁷

And “[i]n the absence of any evidence that the employee cannot of her own free will move her home outside of the District,” the court found that the employee’s choice to make her home in Delaware did not transform her chosen abode into a regular and permanent establishment or place of business of the defendant and did not warrant discovery of her tax returns, reimbursement forms or pay stubs.³⁸

Similarly, in NetSoc LLC v. Chegg Inc.,³⁹ the U.S. District Court for the Southern District of New York identified several deficiencies in finding the plaintiff failed to make any showing that additional discovery would “uncover additional facts” related to an employee that lived in and worked from home in the district:

NetSoc does not allege any basis to infer that Quora may have stored inventory at the employee’s home; that Quora conditioned his residence in New York; that it prevented him from leaving New York on his own volition; or that it required him to work from his home in New York. NetSoc also does not point to any marketing or advertising suggesting that Quora held out the employee’s home as part of its business, or that the employee actually engaged in business from his home.⁴⁰

Given these findings, the court declined plaintiff’s requested venue discovery, finding it was “based on pure speculation.”⁴¹

Courts also routinely refuse venue discovery where the relevant venue-related facts are undisputed⁴² or the party’s request for venue discovery is nonspecific⁴³ or overbroad.⁴⁴

Courts also have rejected requests for venue discovery where it would serve no purpose⁴⁵ — i.e., where the record is already clear,⁴⁶ the parties have already engaged in discovery sufficient to explore venue,⁴⁷ and/or additional discovery cannot cure the legal flaws in the requesting party’s venue claims.⁴⁸

What Limits Do Courts Place on Venue Discovery?

When courts do permit venue related discovery, it may be subject to some topical or temporal limits set by the parties or the court. In Celgene Corp. v. Hetero Labs. Ltd., for example, the U.S. District Court for the District of New Jersey ordered production of specific categories of venue-related documents concerning leases, corporate structure, assets and liabilities, hotel records, rental agreements, tax returns and specific, area-based marketing campaigns.⁴⁹

The court may also set limits on the number of requests for documents, sets and numbers of interrogatories, or depositions that may occur pursuant to Federal Rule of Civil Procedure 30(b)(6)⁵⁰ or explicitly provide the topics and issues appropriate for venue-related discovery.⁵¹

If parties do not issue sufficiently narrow discovery requests themselves, the court may issue a protective order to remedy overbroad or excessive requests.⁵² As such, in the event a court allows venue discovery, practitioners should attempt to limit and narrowly tailor their discovery requests to the specific venue issues at hand.

Conclusion

The patent venue landscape is far from settled, and the facts relevant to venue are often unclear or disputed at the outset of a case. Litigants asserting or facing a venue-related challenge should consider how and whether venue discovery can bolster their position, as well as what specifically to request and why it might be helpful.

Endnotes

This article was published on July 19, 2020 in the Harvard Law School Forum on Corporate Governance and Financial Regulation blog.

As COVID-19 related economic disruptions place unprecedented stress on cash flows, the risk of insolvency is a new and growing concern for many businesses. Against the backdrop of a decades-long growth in corporate debt, boards of directors are making decisions that have the potential for pitting the interests of creditors against the interests of equity shareholders. As the financial health of a business deteriorates, its directors should be cognizant that their fiduciary duties may shift or expand with respect to these different constituencies if and when the company actually crosses over into insolvency.

In response to the financial pressures of the COVID-19 crisis, many employers are considering pay reductions as an alternative to furloughs or layoffs. Most states require advance notice of these changes, and some states have specific timing and/or form-of-notice requirements. These requirements are detailed below.

Because of the current economic environment, some employers may not be able to give the required advance notice before wage reductions go into effect. While state departments of labor have not issued guidance waiving these requirements, they may be less likely to penalize employers for failure to give sufficient notice in the current environment, particularly if the pay reduction is being done to prevent layoffs. That said, employers should still try to give as much notice as possible of pay reductions, even if the notice period falls short of what is required under state law.

States With Specific Timing and/or Form-of-Notice Requirements

State	Amount of Notice Required	Specific Form of Notice Required	Other Notes
Alaska	1 pay period	None
California	7 calendar days	None	Notice requirement does not apply to exempt employees
Maine	1 business day	None
Maryland	1 pay period	None
Missouri	30 calendar days	None
North Carolina	24 hours	None
Nevada	7 calendar days	None
New York	7 calendar days	Hourly Employees Exempt Employees Weekly Rate / Salary for Fixed Number of Hours (40 or fewer)
South Carolina	7 calendar days	None

The following states require advance notice of pay reductions, but do not specify the amount of advance notice required or provide for any particular form of notice: Colorado, Connecticut, Delaware, Hawaii, Idaho, Illinois, Indiana, Kansas, New Jersey, Michigan, Minnesota, New Hampshire, New Mexico, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Vermont, Virginia, Washington, Washington, D.C, West Virginia and Wisconsin. If possible, we recommend that employers give at least seven calendar days of notice to satisfy that the notice is given in “advance” in these states.

The following states do not explicitly require advance notice of pay reductions: Alabama, Arizona, Arkansas, Florida, Georgia, Kentucky, Louisiana, Massachusetts, Mississippi, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Dakota and Wyoming. Although these states do not explicitly require advance notice, we recommend as a best practice that employers still provide advance notice (seven calendar days, if possible).

Iowa does not generally require advance notice of pay reductions, but may require one pay period of advance notice if an employer has previously violated Iowa wage payment laws.

Penalties for failure to provide the required advance notice vary by state. A common penalty amount is $50 per employee per day that the notice requirement is not met.

Employers are encouraged to consult with counsel before implementing pay reductions to ensure that the reductions are compliant with applicable law.

This article was published on April 24, 2020 on ConsensusDocs.

Much has been written about whether and how COVID-19 qualifies as a force majeure event, and some additional information can be found here. But typical force majeure provisions entitle contractors to only schedule relief. While force majeure clauses may limit exposure to liquidated or consequential damages for delays, contractors who incur increased costs resulting from COVID-19 related delays should carefully evaluate the entirety of their contractual rights to not only an extension of time, but also recover prolongation costs. To assist in this endeavor, this article looks beyond force majeure to other potentially relevant contractual provisions. Potential remedies under the various contractual clauses discussed below will depend on the specific contractual language and project-specific facts.

Change-in-Law Provisions

A change-in-law provision is a common contractual provision that may allow for additional time, money or both if there is a change to a federal or state law, executive order or other governmental action during contract performance. COVID-19 has produced multiple government orders and directives that have impacted construction throughout the country. A 50-state account of these orders and directives can be found here. Change-in-law provisions may appear in broader force majeure provisions, or as standalone clauses.

Emergency Provisions

Some contracts include provisions for relief in the case of an emergency. For example, the American Institute of Architects (AIA) provides a standard emergency clause:

In an emergency affecting safety of persons or property, the Contractor shall act, at the Contractor’s discretion, to prevent threatened damage, injury, or loss. Additional compensation or extension of time claimed by the Contractor on account of an emergency shall be determined as provided in Article 15 and Article 7.

See AIA Document A201-2017 § 10.4.

Emergency provisions may provide contractors the right to suspend work and seek consequent compensation and time extensions. Furthermore, emergency provisions may provide an avenue for recovery of additional compensation and time related to isolated events, such as shutting down a project for a short period to disinfect a work area after an infected employee leaves the worksite or leasing a larger space to hold project meetings to comply with social distancing requirements.

Escalation/Unit Price Provisions

Escalation or unit price provisions entitle the contractor to an equitable adjustment in the contract or material price if the character or quantity of an item is now so different as to create a substantial inequity. COVID-19 has, and will likely continue to, dramatically affect global supply chains, resulting in increased lead times and costs for project-specific equipment and materials outside the contemplation of the contracting parties. However, escalation or unit price provisions typically require that any change — here the COVID-19 pandemic — must create a substantial inequity mandating relief, a fact-specific analysis.

Change Order Provisions

Change order provisions may allow contractors to recover additional compensation and time as the result of COVID-19 disruptions. In certain instances, contractors may receive informal or written directives from an owner or, in the instance of a subcontractor, a general contractor related to COVID-19 that unilaterally mandate changes to an existing contract’s scope of work. In these cases, contractors should request written orders for any directed changes prior to commencement of work, if practicable, and, in any event, document the time and costs associated with any directed change.

Stop Work Notices and Provisions

Under certain circumstances, typically due to certain acts, omissions or directives by the owner, a contractor may be permitted or required to stop work. In that event, the contractor may be entitled to an extension of time and reasonable costs related to the shutdown, including delays and demobilization and mobilization costs. Stop work provisions typically apply under very specific situations and require strict compliance with notice requirements.

Suspension and Termination Provisions

Suspension of work clauses may provide an avenue of relief for contractors. For example, some suspension provisions include the right to suspend project work during the presence of “hazardous conditions” at the project worksite. The actual or potential presence of COVID-19 at a project worksite may arguably constitute a hazardous condition, allowing the contractor to suspend work and obtain time extensions and recovery of costs related to the suspension period.

Contractual termination provisions typically require stoppage of work on a project for a defined period of time as a result of a court order or government act. If applicable, termination provisions may entitle contractors to compensation for work performed, reasonable overhead and profit for work not executed, and costs incurred due to termination. Since termination of a contract is an extreme remedy, contractors should give careful and due consideration to the effects of invoking a termination provision.

Additional Considerations for Contractual Remedies

Providing proper notice is typically a condition precedent to the exercise of the above contractual remedies. Accordingly, contractors are advised to closely examine and strictly follow contractual and, in the event of public works, administrative notice requirements to help reserve rights and avoid potential claims of wavier. While COVID-19 regulations and orders may impact your ability to strictly comply with certain notice requirements — e.g., in-person service requirements — substantial compliance under the circumstances may excuse failure to achieve literal compliance with contractual notice requirements. In that event, contractors are well-advised to document all efforts to provide notice. Furthermore, exercise of the above-discussed contractual provisions may invoke contractual dispute resolution provisions. For example, the AIA Standard General Conditions require that most claims first be submitted to the Initial Decision Maker, and then be subject to mediation as a condition precedent to binding dispute resolution. Ignoring dispute resolution provisions may impact your ability to submit a claim or recover additional compensation. In the event of claims arising from COVID-19, contractors should consider providing compliance notices to subcontractors regarding their potential impact claims, emphasizing the importance of timely claim submissions, the failure of which may impact the contractor’s ability to pass-through subcontractor claims to the owner.

The potential applicability of contract provisions to COVID-19 impacts on your project is a time-sensitive and deliberate process for contractors suffering from delays and cost increases. The information above is for informational purposes only and is not intended to serve as providing legal advice. If you have further questions or seek advice based on your specific fact situation and contractual provisions, please reach out to any members of the Pepper Hamilton and Troutman Sanders Construction groups. In addition, Pepper Hamilton and Troutman Sanders maintain a COVID-19 Dedicated Resource Center to help guide clients through the challenges presented by COVID-19.