COVID - 19 PRACTICES AREAS
The outbreak of Coronavirus (COVID-19) has changed daily life in unprecedented ways. It also has created new and unique legal challenges for business owners.
At Rose Law Firm our diverse team of attorneys are prepared to assist you and your business with a variety of legal needs related to COVID-19. Below are some of the potential issues that we have identified and are ready to assist you with.
Evolving Legal Updates from Federal and State Governments – COVID-19 is leading to new legislation on the federal and state level regarding employment laws, leave laws, landlord/tenant interactions, etc. These changes are happening on a daily basis and can be difficult to understand for the layperson. Our attorneys are ready and available to advise you on what these new laws can mean for your business or estate.
Landlord/Tenant Issues - The current COVID-19 outbreak is creating stress on the landlord/tenant relationship as tenants lose their source of income and ability to pay rent. Restrictions on evictions are being considered and, in some instances, have already been put in place by local governments. Whether you are a landlord or a tenant, you need to be aware of your rights and obligations as these restrictions evolve. You need to be aware of options you may have to work with your landlord or tenant, to help each other weather this current storm together. Our legal professionals are staying on top of this ever-changing area and are here to assist you in identifying your rights and obligations and to negotiate and implement options to get through this crisis, as either a landlord or a tenant.
Creditor Protection Strategies - If you are a creditor, the COVID-19 crisis is going to affect the ability of your borrowers and customers to make timely payments. Many businesses are closing, and workers are not earning wages. When and under what circumstances should you be considering offering alternative payment plans, forbearance agreements, or loan workouts. Should you consider obtaining increased security to protect your accounts and investments? Let us help you consider your options, negotiate and implement reasonable and achievable solutions.
Pre-Bankruptcy Planning- As a borrower or customer facing financial difficulties as a result of the COVID-19 pandemic, what options do you have to buy time or negotiate alternative payment options on your loans and accounts? How do you approach your creditors? What things should you avoid doing so that you do not create legal problems for business’s future. Are there other sources of financing that you should be considering? Let our experienced attorneys help you navigate these tough times.
Estate Planning – What was true before the COVID-19 pandemic will still be true when it is finally controlled: none of us will get out of this life alive. And when you die, your money, property and prized possessions will pass to others in one of either two ways: (1) in accordance with the estate plan you establish; or (2) in accordance with the laws of intestacy enacted by your state’s legislature. Which of those two options do you prefer? Our Estate Planning team can help you design or update an estate plan that ensures that your legacy is managed and ultimately distributed according to your wishes.
Labor and Employment Issues - Employers are navigating unchartered territories in the wake of COVID-19. Let our team help you through this difficult time by providing advice on all COVID-19 employment issues. We can advise on layoffs, changes to unemployment benefits, the nuances of the Families First Coronavirus Response Act and other considerations for the Family Medical Leave Act, sick leave (federal and state) and updated guidance on the ADA. Our Employment and Labor team can help you understand and apply the constantly changing laws and mitigate exposure to potential claims.
Business Partner Relations - Are the business and economic crunches caused by COVID-19 causing additional stress between you and your business partner(s)? Do you have all of your corporate documents in order in the event disaster strikes? Do you know your options for separating your interests if the stresses become too much? What do you do if you suspect your partner is engaging in business misconduct? Our experienced business litigators can guide you through your business relationships, whether that includes cleaning up your corporate documentation, negotiating a separation from your partner(s) or going to court to deal with breach of fiduciary duties, mismanagement or conflicts of interest.
Business Contingency Planning - A prudent business owner should anticipate that the current public health emergency arising from COVID-19 presents risk exposures to their business from multiple potential scenarios, including: (1) the owner themself becoming unable to exercise management and control of the business because of their own sudden health issue, and/or (2) a governmental order that results in the business premises becoming inaccessible. Such risks can be addressed by thoughtful business contingency planning, to include designating one or more individuals to assume management responsibility in the event of the owners’ sudden absence and implementing workplace procedures to facilitate your employees being able to work remotely. We can assist business owners to create a written contingency plan tailored to your business and provide your organization with a structured approach to dealing with events which otherwise might place the future of your enterprise in jeopardy.
SBA Loans and Other Small Business Relief - Small businesses facing closures and/or layoffs as a result of the effort to contain the spread of COVID-19 can seek financial assistance from the U.S. Small Business Administration (SBA). That agency’s disaster assistance loan program, which provides low-interest loans of up to $2 million to qualifying small businesses suffering substantial economic injury, became available in Washington and some Oregon counties effective January 31, 2020, and was announced on Friday, March 20, 2020 to now be available in all of Oregon. We have previously assisted clients in successfully utilizing government programs to generate liquidity. We can guide business owners in navigating the fast-changing and complex landscape of resources available to overcome the temporary loss of revenue they may experience as a result of COVID-19.
Anticipatory Repudiation – Anticipatory Repudiation is a legal concept that arises in the context of a sale of goods that is governed by Article 2 of the Uniform Commercial Code (the “UCC”). In simple terms, the concept of Anticipatory Repudiation gives a party to a contract the right not to perform its obligations under the contract if the other party has indicated that it cannot or will not perform its obligations under the contract. While this is a fairly easy concept to understand, applying it to actual facts can get complicated - if for example the performance in question is future performance, a payment is required by the other party before the future performance, or the seller has communicated only that it might not be able to perform in the future. Knowing how to act in this situation, whether you are the seller or the buyer, requires familiarity with the provisions of Article 2 of the UCC. Let our attorneys help you navigate this potential issue in the wake of COVID-19.
Contract Renegotiation – Many small businesses find themselves in the position of needing to renegotiate the terms of their key contracts with COVID-19 affecting the normal course of business. How do you go about entering into negotiations without telling the counterparty that you are not going to be able to fulfill your obligations, and will giving that notice constitute a breach of the contract by itself? The appropriate answer to that question will depend upon whether you have a contract to sell/purchase goods, or a contract to provide services. In the situation where the contract is a sale of goods, it is likely that Article 2 of the Uniform Commercial Code (the “UCC”) governs the rights and duties of the contracting parties. One of the statutory concepts under the UCC that often comes into play in this situation is known as “Anticipatory Repudiation”. If the contract is for the provision of services, the first analysis will be to see what the terms of the contract itself provide. Are there “force majeure” or “delay” provisions that outline the obligations of the parties in unforeseen circumstances? Absent express terms in the contract itself, there may be additional legal defenses to non-performance that arise out of the governing law of the contract. While it is generally good to communicate proactively with your contracting parties and to document that communication, small business owners should be aware that there are right ways and wrong ways to go about renegotiating contracts and it may be prudent to seek legal assistance. The attorneys at Rose Law Firm can assist you with choosing the best course of action for your business.
Force Majeure and Other Protective Provisions – If you find yourself in a situation where either you cannot perform under a contract or the counterparty cannot perform under the contract due to COVID-19 related issues, you will want to check to see if there is a “force majeure” provision in your contract. A force majeure provision is a clause in a contract that addresses unforeseen circumstances (sometimes referred to as “acts of God”) that interrupt or delay performance under the contract. If there is a “force majeure” or similar provision governing non-performance or delays, the first analysis will be of the contract terms itself. If your contract does not contain any of these provisions, there may be additional protections for non-performance (such as the legal doctrines of “impracticability” or “frustration of purpose”) that arise under the law that governs the contract. These remedies and how they are administered differ state to state and are generally only applicable in the context of a lawsuit - although understanding how these legal doctrines work can inform you how to act or react appropriately to unforeseen circumstances affecting your contract. Our attorneys can review your current contracts and advise you on any applicable remedies or protections for your business.
Insurance Policy Provisions - Business owners need to pull out their insurance policies and review the coverages they have, particularly in light of the stay-at-home orders being issued by state and local governments due to COVID-19. Even if you do not have a separate business interruption insurance policy, your property insurance coverage may provide your business with coverage for the loss of business income attributable to a governmental order which prohibits your employees from coming to work. We can review your policies and analyze the extent of the insurance protection available to your business.
Contract Review and Documentation - The heart of many businesses lies in their third-party contracts, whether they are contracts supporting a supply chain, for management services, related to equipment leases or sales, or a business’s financial security. In times of economic downturn such as we are facing with the COVID-19 crisis, it is particularly important to understand your rights and obligations under those contracts. What happens and what can you do if you or the other party is unable to perform? What remedies does the contract provide in the event of default? Can you or the other side sue to enforce performance? Does the contract contain the right to recover attorney fees in the event of default? What should you do if your contract is not well-drafted or documented at all? We have dealt with contracts from both sides of the bench – enforcing them and defending against alleged breaches. Let our team of experienced business and commercial attorneys help you understand your rights, duties and responsibilities; and steer you through what happens in the event of a breach.