In 2021, the U.S. government announced the first civil settlement with a company regarding CARES Act fraud. The government’s novel use of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 in that case bears watching, as the act provides significantly wider enforcement capabilities than does the traditionally used False Claims Act, including a lower burden of proof for violations, longer statutes of limitation and higher potential fines for companies found to commit fraud.
On October 12, 2020, in Travelport Ltd & Ors v WEX Inc, the English High Court handed down a rare judgment on material adverse effect (MAE) clauses, which WEX invoked in an attempt to pull out of a $1.7 billion acquisition. In ruling on a preliminary issue, the court upheld the MAE clause's natural, broad meaning, thus providing WEX with a foundation upon which to cancel the deal and highlighting the need for careful drafting of such clauses.
Shareholder Derivative Suits Likely To Extend to COVID-19, Racial Equality
September 30, 2020 - Quarterly Insights
Companies can expect to see shareholder derivative litigation related to allegations surrounding COVID-19 and structural racism filed over the next year. Boards are well advised to actively monitor the company’s response to and disclosures on those issues to minimize their risk of exposure to such suits.
Liability Protections in Coronavirus Relief Legislation
July 27, 2020
The SAFE TO WORK Act, introduced on July 27, 2020, would provide relief to American businesses, educational institutions, nonprofit organizations and health care providers impacted by the COVID-19 pandemic. By moving coronavirus-related lawsuits into federal court and codifying what are viewed as common sense liability protections, the proposed legislation would limit the prospect of litigation while preserving the rights of injured individuals to pursue legitimate claims against grossly negligent defendants. This is the long-awaited Senate leadership liability protection proposal that Congress is expected to consider as part of the overall Phase 4 pandemic relief package.
Skadden partner Edward Micheletti, who heads the litigation practice of the firm’s Wilmington office, answers common Delaware law questions facing boards of directors during the COVID-19 crisis.
While Delaware’s “stay at home” order remains in place amid the COVID-19 pandemic, the Delaware Supreme Court and Court of Chancery are still operational and legal services providers may continue to conduct business. Corporate litigation pending in Delaware continues with relatively minimal interruptions.
On April 13, 2020, the French government announced that the lockdown measures in force since March 16, 2020, will remain in effect until at least May 11, 2020. Correspondingly, the government expanded the budget for the state of emergency; specified further employer options to manage temporary layoffs and related tax, social security and sick leave provisions; and, despite recent trial delays, issued emergency order enforcement actions to protect the health and safety of warehouse employees.
As a consequence of the COVID-19 pandemic, civil litigation in many U.S. commercial centers has been disrupted, potentially creating a future backlog of matters, and new disputes are arising between commercial parties. In the circumstances, parties may want to consider entering into an arbitration submission agreement, which can be used after a dispute arises to have it resolved through arbitration — even if the parties had not previously contemplated arbitrating their disputes.
COVID-19: How To Prepare for Potential Future Disputes
April 15, 2020
As the COVID-19 pandemic continues to develop, guiding a business through this time of crisis means making decisions that gravely impact the company and its employees. With this in mind, companies should be aware of the methods and levels of record-keeping they will need in advance of a potential future litigation or arbitration dispute.
The outbreak of coronavirus/COVID-19 has caused numerous companies and event organizers to postpone, reschedule or even cancel public events, including sporting events, concerts and conferences. We provide a summary of key principles and possible considerations in evaluating the host of commercial concerns raised by these postponements and cancellations, including whether performance may be excused under a force majeure provision or a common law doctrine, the extent of each party’s insurance coverage and whether the event organizer must provide refunds to ticket purchasers.
After initially invoking the Defense Production Act in response to the COVID-19 outbreak on March 18, 2020, President Donald Trump has now begun to formally deploy its authorities, including by ordering General Motors Co. to prioritize certain contracts for the production of ventilators. As the extent to which the government uses the DPA continues to evolve, so will the legal questions posed by those uses.
The COVID-19 pandemic may make complying with certain statutory or contractual deadlines materially or physically impossible. To address this situation, Ordinance No. 2020-306, which was passed by the French government on March 25, 2020, enacts a “moratorium” on such deadlines that would have otherwise expired between March 12, 2020, and one month after the end of the state of health emergency declared by the government.
In this series, “Critical Thinking in the Time of COVID-19,” Skadden’s European tax practice examines the next stage of analysis for corporates that have begun digesting the economic and legal impact of COVID-19 on their businesses. In this edition, our London-based tax team covers the area of UK tax litigation and enforcement.
Impact of COVID-19 on White Collar Enforcement
March 31, 2020
The COVID-19 crisis will likely create disruptions in enforcement activity for the time being. However, there may be a post-crisis uptick in activity focused on how companies reacted to the market displacement caused by the virus. Companies should continue to focus on their compliance and governance processes, particularly in areas where COVID-19 may increase risk.
French courts are closed for the unknown duration of the COVID-19 lockdown. Businesses facing immediate difficulties may still file for emergency or restructuring proceedings. Filings must be made electronically and hearings will be conducted remotely.
On March 18, 2020, President Trump announced his intention to invoke the Defense Production Act of 1950 in response to the coronavirus pandemic. The DPA grants the executive branch of the federal government broad authorities to enlist private companies to assist with meeting the demands of a national emergency, including by ordering companies to prioritize contracts and by incentivizing private production through loans and loan guarantees. It is not yet certain which of the statute’s authorities the president intends to use and how broadly he intends to use them amid the evolving uncertainties created by the outbreak.
March 18, 2020
The question is no longer whether the volatility created by the COVID-19 pandemic will deepen the difficulties businesses and other institutions face in the coming months, but by how much and in what ways. In the past few weeks, we have offered client mailings and webinars on COVID-19-related topics, and we will work to keep you informed of important developments as these issues evolve. Included below are updates to our recent commentary, with answers to questions we have been receiving.
On May 28, Skadden held a webinar titled “Safe Harbors: Potential Federal and State Protections Against COVID-19 Litigation.” Topics included possible statutory and regulatory safe harbors against exposure claims, protections against product liability claims and measures that could discourage meritless filings. Skadden participants included mass torts, insurance and consumer litigation head John Beisner, co-deputy securities litigation head Susan Saltzstein, and partners Jessica Miller and Geoffrey Wyatt.
Litigation, Exposure and Insurance During the COVID-19 Pandemic On May 18, Skadden and Marsh held a webinar titled “Litigation, Exposure and Insurance During the COVID-19 Pandemic,” focusing on litigation trends stemming from the pandemic, insurance-related issues that may arise from these claims and strategies for advocating through these issues to maximize coverage. Panelists included Skadden litigation partners Marcie Lape and Amy Van Gelder, as well as Machua Millet, chief innovation officer, financial and professional liability, at Marsh.
On April 29, Skadden held “Electronic Discovery and Technology Challenges During the COVID-19 Pandemic,” a webinar focused on several unique discovery and technology challenges that have emerged as the COVID-19 pandemic continues to disrupt the conduct of litigation. Speakers from Skadden’s E-Discovery Committee discussed managing deadlines and expectations in the current climate; court experiences during the pandemic; the future of video depositions, witness interviews and trials; working with e-discovery vendors; and legal technology tips. Speakers included partners Richard Bernardo and Peter Morrison, counsel Robin Shah, discovery counsel Patricia McNulty and assistant director Steven Shankroff.
COVID-19: The Mass Torts and Consumer Class Action Horizon
March 27, 2020
On March 27, Skadden presented “COVID-19: The Mass Torts and Consumer Class Action Horizon,” a webinar on the threat of tort- or statute-based lawsuits in the coming months and years as the impact of the coronavirus expands. Topics included personal injury litigation, class actions alleging economic loss, and emerging legislative and regulatory developments that could help limit liability for companies whose businesses have been disrupted by the pandemic or that are responding to the spread of COVID-19. Speakers included partners John Beisner, Allison Brown, William McConagha, Jessica Miller and Geoffrey Wyatt.