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COVID-19 Coronavirus Business Impact

The COVID-19 outbreak has caused unprecedented disruption to business operations worldwide and significantly altered both personal and professional relationships. The changes being encountered are extremely dynamic. We are closely monitoring COVID-19 developments and making adjustments to the way we do business as we keep our people and our communities safe. As a firm, our resources, people and client-focused culture well situate us to provide uninterrupted service to our clients.

Dechert has created a COVID-19 Task Force to provide guidance and support to clients across each of our disciplines, including antitrust, capital markets, corporate, employee benefits, labor and employment, leveraged finance, litigation, M&A, private equity, taxation and trade, with updates occurring daily. Below we have a dedicated webpage and library of relevant materials with a link to our Broadcast Series and upcoming webinars.  

Our unwavering commitment to providing high-level service to our clients remains the same as ever. We maintain a dedicated and determined team committed to supporting our clients in the current environment, so that we can emerge from this challenging time stronger and more committed partners. For more information, please contact Stuart Davis.

Anti-Corruption Considerations 

Compliance professionals should consider the best defense to be a pre-emptive offense, which includes not just assessing this risk now, in the midst of the crisis, but taking steps to limit their exploitation.

Read our guidance: Anti-Corruption Considerations (U.S. and UK) – March 13, 2020

Board and Shareholder Meetings

The Government's announcement of new measures on 23 March 2020 requiring people to stay at home, except for very limited purposes, and to stay two metres away from other people has had an effect on the ability of public companies incorporated in the United Kingdom to hold annual general meetings (AGMs). In the UK, under the Companies Act 2006 there is a requirement for public companies to hold an annual general meeting within six months following the end of their financial year. Therefore a large number of public companies, having a 31 December financial year end, are required to hold their annual general meetings by 30 June 2020. The following are some considerations for public companies in relation to convening and conducting their AGMs.

Read our guidance: COVID-19 and its Effect on the AGM Season for Public Companies in the United Kingdom (UK) - March 27, 2020

Companies should consider whether to hold their usual shareholder and board meetings as planned, or whether rescheduling meeting dates, changing meeting locations or switching to “virtual-only” or partially virtual meetings may be appropriate in these circumstances.

Read our guidance: Considerations for Board and Shareholder Meetings (U.S.) – March 16, 2020

Capital Markets

Amongst many moves being initiated in different markets, AIM regulation set out certain temporary measures it is implementing to support AIM companies and nominated advisers in an attempt to afford market players some latitude during the pandemic crisis. AIM regulation has stated it will be applying 'discretion' to the application of some of the junior market's rules until further notice. AIM companies should continue to meet their disclosure obligations without delay.

Read our guidance: AIM Temporary Measures (UK) - March 26, 2020

The global capital markets are in a state of flux, with major sell offs in global stock markets due to fears about the impact of the COVID-19 coronavirus, as well as a result of the slump in oil prices. In these precarious and volatile times, issuers should take time to consider the following.

Read our guidance: Bond Issuer Considerations (Global) - March 23, 2020

Contract Performance

COVID-19 constitutes a force majeure event. However, if the risk of unforeseen events like the COVID-19 pandemic is fully attributed to one party in the agreement, that party might not be entitled to request an adjustment of the terms of the agreement, or to terminate the agreement, and might even be held liable for the damages caused by the non-performance under German statutory law.

Read our guidance: Impacts of COVID-19 on the Performance of Contracts Under German Law (Germany) - March 25, 2020

We examine the key issues around contractual non-performance and termination under English law. Any party either seeking to rely on force majeure or frustration or in receipt of a notice relying on these concepts should consider its options carefully and take appropriate advice.

Read our guidance: English Law Considerations on Force Majeure, Frustration and Termination (UK) – March 23, 2020

Parties to commercial contracts – whether seeking to enforce counterparties’ contractual obligations or seeking to be excused from their own performance – must consider the potential applicability of the following defenses.

Read our guidance: Will Global Pandemic Excuse Contractual Performance? (U.S.) – March 17, 2020

Data Privacy

At a time when employers may be feeling bombarded by information, we set out below five key steps that employers should take to protect their employees’ personal data.

Read our guidance: Protecting Employee Personal Data (UK) – March 13, 2020

Employee Benefits and Executive Compensation

On March 25, 2020, the Senate passed the stimulus bill known as the Coronavirus Aid, Relief and Economic Security Act, which contains provisions that (i) relax rules governing certain early distributions, loans and required minimum distributions from tax-qualified retirement plans and individual retirement accounts, (ii) makes adjustments to the rules relating to the funding of tax-qualified single-employer defined benefit plans, and (iii) limits compensation paid by employers to certain officers and other employees where those employers seek to qualify for loans under the Act.

Read our guidance: Congress Formulates Retirement-Related and Executive Compensation Provisions for the COVID-19 Stimulus Bill (U.S.) - March 26, 2020

Lawmakers are pushing an economic stimulus plan to help alleviate the social, economic, and societal impacts of the COVID-19 crisis. The legislation includes a variety of public health measures, as well as several provisions that significantly impact private employers. Ultimately, the legislation provides temporary benefits to mitigate financial fallout and help people and businesses reduce the spread of COVID-19. 

Read our guidance: Families First Coronavirus Response Act: A Legislative Response to COVID-19 and What Employers Need to Know (U.S.) – March 19, 2020

The following provides an overview on the protective measures enacted (or expected to be enacted) by the German government to address and mitigate the impact of COVID-19 on German companies and their employees.

Read our guidance: Protective Shield to Mitigate Impact for Companies and Employees (Germany) – March 18, 2020

Finance

On March 23, 2020 the Federal Reserve Bank announced the establishment of the Term Asset-Backed Securities Loan Facility (TALF) to "support the flow of credit to consumers and business" by facilitating the issuance of asset-backed securities (ABS) and improving the market conditions for ABS generally. Although the full terms, conditions and potential size and scope of the TALF program are still not finalized at this time, the success of the Legacy TALF Program during the 2008 financial crisis should create a sense of optimism by increasing liquidity and encouraging investment into the structured finance market.

Read our guidance: Federal Reserve Establishes Term Asset-Backed Securities Loan Facility (TALF) (U.S.) - March 26, 2020

Financial Services

The outbreak of the COVID-19 coronavirus is causing business disruption on an unprecedented scale. After more than a decade of sustained economic growth, market volatility and central bank intervention has returned. Dechert's private funds team presents this report of general considerations for all fund and alternative asset managers to help them navigate this complex and fast-changing situation.

Read our guidance: Facing a Global Challenge: Key Considerations for Fund Managers (Global) - March 26, 2020

On March 23, 2020, the SEC issued an order providing relief to registered open-end funds and insurance company separate accounts registered as unit investment trusts. The SEC order follows two previous orders which provided relief to funds and investment advisers whose operations may be affected by the COVID-19 coronavirus outbreak. The relief will remain in effect through at least June 30, 2020.

Read our guidance: SEC Takes Further Action to Assist Funds in Light of COVID-19 Coronavirus Pandemic: Provides Flexibility for Funds and Insurance Company Separate Accounts to Obtain Short-Term Funding (U.S.) - March 25, 2020

International Arbitration

We consider the legal consequences that may arise from the COVID-19 outbreak in relation to the performance of contractual obligations and the conduct of international arbitrations.

Read our guidance: The Consequences on Contract Performance and the Resolution of Disputes (Global) – March 9, 2020

International Trade

The outbreak of COVID-19 is impacting international trade as global markets deal with uncertain supply and companies and governments work to ensure personal safety while developing contingency plans for handling the virus.

Read our guidance: International Trade Navigation (U.S.) – March 11, 2020

Labor and Employment

The following is an overview of key provisions of Russia's Order "On Declaring Non-Working Days in the Russian Federation," including who the order covers, how employees should be paid and which organizations are exempt.

Read our guidance: Russia Expands COVID-19 Coronavirus-Related Measures: The Impact on Employers and Employees (Russia) - March 27, 2020

Employers wishing to take advantage of the job retention scheme will need to plan carefully how they are going to address the changes needed to be made to employment arrangements to fall within its scope - in terms of seeking agreement to and documenting employees being furloughed. 

Read our guidance: Coronavirus Job Retention Scheme – Q&A (UK) - March 27, 2020 (Updated)

Leveraged Finance

For some industries, the immediate loss of revenue is obvious. For other industries, a loss in revenue is likely linked to the disruptions in their supply chain. The expectation is for a significant number of businesses to be negatively impacted by this virus, while it remains to be seen exactly what that will look like.

Read our guidance: What Could It Mean for Your Portfolio Company’s Compliance With Its Loan Agreements? (UK and Europe) - March 24, 2020

Businesses will need to fight to stay afloat as the repercussions of the virus hit hard. Many of these businesses will have existing financing arrangements in place, and the loan agreements for those arrangements will contain provisions impacting what rights their lenders have in reacting to this crisis.

Read our guidance: COVID-19 as an MAE in English Law Loan Agreements (UK) – March 23, 2020

As the COVID-19 health crisis deepens and increasingly rankles the financial markets, private equity sponsors should take the time to review their portfolio companies' credit facilities and determine what flexibility they may have if their performance is adversely affected. 

Read our guidance: Action Items for Private Equity Sponsors under Their Portfolio Companies' Credit Facilities (U.S. and Europe) - March 16, 2020

Life Sciences

With protective face masks becoming a scarce resource during the COVID-19 pandemic and authorities stepping up public requisitions and export controls on these products, businesses who require this equipment for global manufacturing operations may have concerns about supply reliability over the coming months. While there is no current indication a public requisition is likely to be launched in the UK, existing emergency powers legislation could enable confiscation measures to be taken swiftly.

Read our guidance: We need respiratory face masks for our business operations in the UK and France. Can the UK or French Governments requisition them? (UK and Europe) - March 24, 2020

Litigation

EU enforcers "will not actively intervene against necessary and temporary measures put in place in order to avoid a shortage of supply" caused by the COVID-19 coronavirus pandemic. While this approach provides temporary relief to companies struggling to meet consumer demand under extreme conditions, it should not be misunderstood to mean that antitrust enforcement in Europe is generally on hold. Businesses need to ensure that the necessary safeguards remain in place, in particular when approached by competitors who wish to collaborate in order to mitigate the impact of the current crisis.

Read our guidance: Impact of COVID-19 Coronavirus Pandemic on European Antitrust Enforcement (Europe) - March 26, 2020

In response to the unprecedented spread of the COVID-19 virus, over 70 states, counties and cities in the last two weeks have issued orders directing certain businesses limit or stop their physical business operations. Businesses that violate shutdown orders may be subject to an array of penalties, which may include fines, citations, suspension of business or other licenses, equitable relief or even criminal penalties.

Read our guidance: Key Considerations for Businesses Facing Potential Shutdown Orders (U.S.) - March 26, 2020

If a review is requested for a proposed collaboration that is related to "public health and safety" to combat COVID-19, the DOJ or FTC will act promptly to respond within seven calendar days of receiving all necessary information.

Read our guidance: DOJ and FTC Expedite Antitrust Reviews for Competitor Collaborations (U.S.) - March 25, 2020

Governor Cuomo’s recent executive orders are intended to immediately affect litigation and business operations—especially for financial services entities—in New York. Because New York is the center of the financial industry and many financial institutions are governed by New York law and New York regulators, Governor Cuomo’s recent executive orders will have broad implications for the financial industry.

Read our guidance: New York State, Executive Orders 202.8 and 202.9 Impacting New York State Litigation and Businesses (U.S.) - March 23, 2020

The outbreak has created substantial disruption and uncertainty with respect to civil litigation management. Federal and state courts have responded in a variety of ways, with some extending deadlines and others taking a case-by-case approach.

With courts adopting varied approaches to COVID-19 coronavirus, parties need to remain mindful of pending deadlines and monitor each court independently.

While remote technology might provide alternatives to traditionally in-person discovery and courtroom procedures, it is important to document challenges complying with those deadlines as some courts might not be as sympathetic as others when extensions are sought.

Read our guidance: Managing Civil Litigation During Coronavirus Shutdown (U.S.) – March 19, 2020

Mergers and Acquisitions

While language addressing COVID-19 has been included in a few agreements to date, the typical language requiring MAEs to be company-specific raises doubts about any buyer’s ability to cite the pandemic as a basis for terminating an agreement.

Read our guidance: “Material Adverse Effect” Provisions (U.S., UK and Europe) – March 16, 2020

Tax

Below is a list of global tax measures in response to COVID-19 - March 27, 2020:

COVID-19 related travel restrictions and self-isolation will present practical challenges for non-UK resident fund vehicles and related offshore entities with UK based directors. Care should be taken to ensure that the participation of such directors in board meetings and other strategic decision making does not inadvertently bring the entities onshore for corporation tax or VAT purposes. This OnPoint provides a high-level reminder of the key issues in this area and explains why they remain of critical importance when considering how to resolve board-level logistical challenges arising out of the COVID-19 crisis.

Read our guidance: COVID-19: UK Tax Residence Risks for Offshore Funds and Related Entities (UK) - March 27, 2020

The U.S. Internal Revenue Service extended the Federal income tax payment deadline for any person with a Federal income tax payment otherwise due April 15, 2020.

Read our guidance: Federal Tax Filing Deadline Now Extended (U.S.) – March 20, 2020 (Updated)